'  ^ 


I  xMTED  STATES  RAILROAD  ADMINISTRATION 

W.  G.  McADOO.  DiRKCTOR  General 

Bl'lIKTIN  NO.  1 


FEDERAL  STATUTES  AND  DECISIONS 


AS  TO 


THEFTS  FROM  RAILROADS 

WITH  EXCERPTS  FROM  KINDRED  STATUTES 


ACT  APPROVED  FEBRUARY  13.  1913  (37  STAT.  670). 
SECTION  11  OF  ACT  APPROVED  MARCH  21.  1918. 
ACT  APPROVED  AUGrST  10.  1917  (Pnority  Act).  AND 
ACT  APPROVED  APRIL  20.   1918  (Sabotage  Act). 


COMPILED  BY  THE  PROPERTY  PROTECTION  SECTION 
DIVISION  OF  LAW 


UfORf«IMT7>- 


f  n--^19l93 


ISSUED  BY  DIVISION  OF  LAW 

JOHN  BARTON  PAYNE.  General  Counsel 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

I<)18 


CONTENTS. 


Statutks:  Page. 

37  Stat..  0)70.     An  act  to  punish  stealing  of  freight,  etc..  in  interstate  transit, 
or  felonious  possession  of  the  same 5 

Section  11  of  the  act  of  March  21.  1918: 

Relative  to  conversion  or  embezzlement  of  money  or  property  in  posses- 
sion of  railroads  by  officers,  agents,  and  employees 6 

Act  approved  Aug.  10,  1917: 

Relative  to  obstruction  or  retardation  of  the  orderly  conduct  or  move- 
ment of  interstate  or  foreign  commerce 7 

Law  against  subotage 7 

Court  Dkcisions: 

Morris  v.  Ujiited  States  (8  C.  C.  A.),  229  Fed.,  516 10 

Friedman  v.  United  States  (1  C.  C.  A.),  233  Fed.,  429 13 

Kaslew.  United  States  {Q  C.  C.  A.),  233  Fed.,  878 14 

Forms  of  Indictment: 

Beard  (and  Dunn)  v.  United  States 25 

Greenburg  et  al.  v.  United  States 27 

United  States  v .  Heyne 29 

Order  of  Director  General  establishing  Section  for  Protection  of  Railroad  Proj)- 

erty 32 

a 


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FEDERAL  STATUTES  AND  DECISIONS  AS  TO  THEFTS 
FROM  RAILROADS. 


37  Stat.,  070. 

AN  ACT  To  punish  tlio  uiiliiwfiil  l)i-(':ikiiiy:  of  seals  of  railroad  cars  containing 
interstate  or  foreign  sliipiiKMits,  tlie  unlawful  entering  of  such  oars,  the 
slealinj:  of  freight  and  ex|)i-ess  packages  or  baggage  or  articles  in  process 
of  transportation  in  interstate  shij)nient,  and  the  felonious  asportation  of 
such  freight  or  exi»ress  packages  or  baggage  or  articles  therefrom  into 
another  district  of  the  Tnitf^d  States,  and  the  felonious  posst^ssion  or  recep- 
tion of  the  same. 

Be  It  etui.eted  hy  the  Soiate  and  House  of  Representatives  of  the 
United  Stages  of  America,  in  Congress  assembled,  That  whoever  shall 
unlawfully  break  the  seal  of  any  railroad  car  containing  interstate 
or  foreijrn  shipments  of  freight  or  express,  or  shall  enter  any  such 
car  with  intent,  in  either  case,  to  commit  larceny  therein;  or  who- 
ever shall  steal  or  unlawfully  take,  carry  away,  or  conceal,  or  by 
fraud  or  deception  obtain  from  any  railroad  car,  station  house,  plat- 
form, depot,  steamboat,  vessel,  or  wharf,  with  intent  to  convert  to 
his  own  use  any  froods  or  chatties  moving  as,  or  which  ai-e  a  part  of 
or  which  constitute  an  interstate  or  foreign  shipment  of  freight  or 
express,  or  shall  buy,  or  receive,  or  have  in  his  possession  any  such 
goods  or  chattels,  knowing  the  same  to  have  been  stolen;  or  whoever 
shall  steal  or  shall  unlawfully  take,  carry  away,  or  by  fraud  or  de- 
ception obtain,  witb  intent  to  convert  to  his  own  use,  any  baggage 
which  shall  have  come  into  the  possession  of  any  common  carrier  for 
transportalion  from  one  State  or  Territory  or  the  District  of  Coliun- 
bia  to  another  State  or  Territory  or  the  District  of  Coliuiibia.  or  to  a 
foreigu  country,  or  from  a  foreign  coiuitry  to  any  State  or  Territory 
or  the  District  of  Columbia,  or  shall  break  into,  steal,  take,  carry 
away,  oi-  conceal  any  of  the  contents  of  such  baggage,  or  shall  buy. 
recei\('.  or  \\\\\q  in  his  ])ossessiou  any  such  baggagi'  or  any  article 
therefrom  of  whatsoc^ver  nature,  knowing  the  same  to  iia\o  been 
stolen,  shall  in  each  case  be  fined  not  more  than  five  thousand  (jollars 
or  imprisoned  not  more  than  ten  years,  or  both,  and  [)roseciUions 
therefor  may  be  instituted  in  any  district  wherein  the  crime  shall 
have  l)een  committed.  The  carrying  or  transporting  of  any  such 
freight,  express,  baggage,  goods,  or  chattels  from  one  Stah^  oi-  Terri- 


b  THEFTS   FROM   RAILROADS. 

tory  or  the  District  of  Columbia  into  another  State  or  Territory  or 
the  District  of  Cohimbia.  knowing  the  same  to  have  been  stolen,  shall 
constitute  a  separate  offense  and  subject  the  offender  to  the  penalties 
above  described  for  unlawful  taking,  and  prosecutions  therefor  may 
be  instituted  in  any  district  into  which  such  freight,  express,  bag- 
gage, goods,  or  chattels  shall  have  been  removed  or  into  which  they 
shall  have  been  brought  by  such  offender. 

Sec,  2,  Tluit  nothing  in  this  act  shall  be  held  to  take  away  or  im- 
pair the  jurisdiction  of  the  courts  of  the  several  States  under  the 
laws  thereof ;  and  a  judgment  of  conviction  or  acquittal  on  the  merits 
under  the  laws  of  any  State  shall  be  a  bar  to  any  prosecution  here- 
under for  the  same  act  or  acts. 

Approved,  February  13,  1913. 


Section  11  or  the  Act  or  March  21,  1918. 

Sec.  11.  That  every  person  or  corporation,  whether  carrier  or  ship- 
per, or  any  receiver,  trustee,  lessee,  agent,  or  person  acting  for 
or  employed  by  a  carrier  or  shipper,  or  other  person.  Avho  shall  know- 
ingly violate  or  fail  to  observe  any  of  the  provisions  of  this  Act.  or 
shall  knowingly  interfere  with  or  impede  the  possession,  use,  opera- 
tion, or  control  of  any  railroad  property,  railroad,  or  transportation 
system  hitherto  or  hereafter  taken  over  by  the  President,  or  shall 
knowingly  violate  any  of  the  provisions  of  any  order  or  regulation 
made  in  pursuance  of  this  Act,  shall  be  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction, be  punished  by  a  fine  of  not  more  than  $5,000,  or, 
if  a  person,  by  imprisonment  for  not  more  than  two  years,  or  both. 
Each  independent  transaction  constituting  a  violation  of,  or  a  fail- 
ure to  observe;  any  of  the  provisions  of  this  Act,  or  any  order  entered 
in  pursuance  hereof,  shall  constitute  a  separate  offense.  For  the 
taking  or  conversion  to  his  own  use  or  the  embezzlement  of  money  or 
property  derived  from  or  used  in  connection  with  the  possession,  use, 
or  operation  of  said  railroads  or  transportation  systems,  the  criminal 
statutes  of  the  United  States,  as  well  as  the  criminal  statutes  of  the 
various  States  where  applicable,  shall  apply  to  all  officers,  agents 
and  employees  engaged  in  said  railroad  and  transportation  service, 
while  the  same  is  under  Federal  control,  to  the  same  extent  as  to  per- 
sons employed  in  the  regular  service  of  the  United  States.  Prosecu- 
tions for  violations  of  this  Act  or  of  any  order  entered  hereunder 
shall  be  in  the  district  courts  of  the  United  States,  under  the  direction 
of  the  Attorney  General,  in  accordance  with  the  procedure  for  the 
collection  and  imposing  of  fines  and  penalties  now  existing  in  said 
courts. 


thefts  from  railroads.  7 

Act  Approved  August  10,  1917  (Priority  Act). 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assemhled.  That  section  one 
of  the  act  entitled  "An  act  to  reguhite  commerce,"  approved  Febru- 
ary fourth,  eighteen  hundred  and  eighty-seven,  as  heretofore 
amended,  be  further  amended  by  adding  thereto  the  following: 

"That  on  and  after  the  ai)proval  of  this  Act  any  person  or  persons 
who  shall,  during  the  war  in  which  the  United  States  is  now  engaged, 
knowingly  and  Millfully,  by  physical  foi'ce  or  intimidation  by  threats 
of  physical  force  obstruct  or  retard,  or  aid  in  obstructing  or  retard- 
ing, the  orderly  conduct  or  movement  in  the  United  States  of  inter- 
state or  foreign  commerce,  or  the  orderly  make-up  or  movement  or 
disposition  of  any  train,  or  the  movement  or  disposition  of  any  loco- 
motive, car,  or  other  vehicle  on  any  railroad  or  elsewhere  in  the  United 
States  engaged  in  interstate  or  foi-eign  commerce  shall  be  deemed 
guilty  of  a  misdemeanor,  and  for  every  such  offense  shall  be  punish- 
able by  a  fine  of  not  exceeding  $100  or  by  imprisonment  for  not  ex- 
ceeding six  months,  or  by  both  such  fine  and  imprisonment;  and  the 
President  of  the  United  States  is  hereby  authorized,  whenever  in  his 
judgment  the  public  interest  requires,  to  employ  the  armed  forces  of 
the  United  States  to  prevent  any  such  obstruction  or  retardation  of 
the  passage  of  the  mail,  or  of  the  orderly  conduct  or  movement  of  in- 
terstate or  foreign  commerce  in  any  part  of  the  United  States,  or  of 
any  train,  locomotive,  car.  or  other  vehicle  upon  any  railroad  or  else- 
where in  the  United  States  engaged  in  interstate  or  foreign  com- 
merce :  Provided,  That  nothing  in  this  section  shall  be  construed  to 
repeal,  modify,  or  affect  eithei'  section  six  or  section  twenty  of  an  Act 
entitled  'An  Act  to  supplement  existing  laws  against  unlawful  re- 
straints and  monopolies,  and  for  other  purposes,'  approved  October 
fifteenth,  nineteen  hundred  and  fourteen.     *     *     *." 


Laav  Against  Sabotage. 

AN  ACT  To  punish  the  willfui  injury  or  destruction  of  war  material,  or  of 
war  premises  or  utilities  used  in  connection  witli  war  material,  and  for 
other  purposes. 

Be  it  enacted  hy  the  Senate  and  Uouse  of  Representatives  of  the 
United  States  of  America  in  Congress  assemhJed,  That  the  words 
"  war  material,"  as  used  herein,  shall  include  arms,  armament,  am- 
munition, live  stock,  stores  of  clothing,  food,  foodstuffs,  or  fuel; 
and  shall  also  include  supplies,  munitions,  and  all  other  articles  of 
whatever  description,  and  any  part  or  ingredient  thereof,  intended 
for,  adapted  to,  or  suitable  for  the  use  of  the  United  States,  or  any 
associate  nation,  in  connection  with  the  conduct  of  the  war. 


8  THEFTS   FROM    RAILROADS. 

Tlie  words  "  war  premises,"  as  used  herein,  shall  include  all  build- 
ings, grounds,  mines,  or  other  places  wherein  such  w'ar  material  is 
being  produced,  manufactured,  repaired,  stored,  mined,  extracted, 
distributed,  loaded,  unloaded,  or  transported,  together  with  all  ma- 
chinery and  appliances  therein  contained;  and  all  forts,  arsenals, 
navy  yards,  camps,  prisons,  or  other  military  or  naval  stations  of  the 
United  States,  or  any  associate  nation. 

The  words  "  war  utilities,"  as  used  herein,  shall  include  all  rail- 
roads, railways,  electric  lines,  roads  of  whatever  description,  rail- 
road or  railway  fixture,  canal,  lock,  dam,  Avharf,  pier,  dock,  bridge, 
building,  structure,  engine,  machine,  mechanical  contrivance,  car, 
vehicle,  boat,  or  aircraft,  or  any  other  means  of  transportation  what- 
soever, whereon  or  whereby  such  war  material  or  any  troops  of  the 
United  States,  or  of  any  associate  nation,  are  being,  or  may  be,  trans- 
ported either  within  the  limits  of  the  United  States  or  upon  the  high 
seas;  and  all  dams,  reservoirs,  aqueducts,  water  and  gas  mains  and 
pipes,  structures  and  buildings,  whereby  or  in  connection  with  which 
water  or  gas  is  being  furnished,  or  may  be  furnished,  to  any  w^ar 
premises  or  to  the  military  or  naval  forces  of  the  United  States,  or 
any  associate  nation,  and  all  electric  light  and  power,  steam  or  pneu- 
matic power,  telephone  and  telegraph  plants,  poles,  wires,  and  fix- 
tures and  wireless  stations,  and  the  buildings  connected  with  the 
maintenance  and  operation  thereof  used  to  supply  water,  light,  heat, 
power,  or  facilities  of  connnunication  to  any  war  premises  or  to  the 
military  or  naval  forces  of  the  United  States,  or  any  associate  nation. 

The  words  "  United  States  "  shall  include  the  Canal  Zone  and  all 
territory  and  w^aters,  continental  and  insular,  subject  to  the  jurisdic- 
tion of  the  United  States, 

The  words  "  associate  nation."  as  used  in  this  act,  shall  be  deemed 
to  mean  any  nation  at  war  with  any  nation  with  which  the  TTnited 
States  is  at  war. 

Sec.  2.  That  when  the  United  States  is  at  war,  whoever,  with 
intent  to  injure,  interfere  with,  or  obstruct  the  United  States  or  any 
associate  nation  in  preparing  for  or  carrying  on  the  M^ar,  or  who- 
ever, with  reason  to  believe  that  his  act  may  injure,  interfere  with, 
or  obstruct  the  United  States  or  any  associate  nation  in  preparing 
for  or  carrying  on  the  war,  shall  willfully  injure  or  destroy,  or  shall 
attempt  to  so  injure  or  destroy,  any  war  material,  war  premises,  or 
war  utilities,  as  herein  defined,  shall,  upon  conviction  thereof,  be 
fined  not  more  than  $10,000  or  imprisoned  not  more  than  thirty 
years,  or  both. 

Sec.  3.  That,  when  the  United  States  is  at  war.  wlioever,  with 
intent  to  injure,  interfere  with,  or  obstruct  the  United  States  or  any 
associate  nation  in  preparing  for  or  carrying  on  the  war,  or  who- 
ever, with  reason  to  believe  that  his  act  may  injure,  interfere  with, 


THEFTS  FROM    RAILROADS. 


or  obstruct  the  United  States  or  any  associate  nation  in  preparing 
foi-  or  carrying  on  the  war,  shall  willfully  make  or  cause  to  be 
made  in  a  defective  manner,  or  attempt  to  make  or  cause  to  be  made 
in  a  defective  manner,  any  war  material,  as  lierein  defined,  or  any 
tool,  implement,  machine,  utensil,  or  receptacle  used  or  employed 
in  making,  producing,  manufacturing,  or  repairing  any  such  war 
jnaterial,  as  herein  defined,  shall,  upon  conviction  thereof,  be  fined 
not  more  than  J^IO.OOO  or  imprisoned  not  more  than  thii'ty  years, 
or  both. 

Approved,  April  20,  1918. 

[Tlie  foregoing  seems  to  come  witliin  the  scope  of  tlie  activities 
of  tlie  j)roperty-protection  section  only  so  far  as  the  act  relates  to 
willful  injury,  interference  with,  or  obstruction  to  railroads,  engines, 
cars,  and  the  like,  to  the  extent,  and  under  the  conditions  that  the 
act  is  applicable  thereto.] 
52486°— 18— 2 


COURT   DECISIONS. 

[Under  the  act  of  Congress  February  13,  1913.     37  Stat.,  G70.] 


Circuit  Court  of  Appeals,  Eighth  Circuit. 

W.  H.  MORRIS  V.  UNITED  STATES. 

Before  Adams  and  Garland,  Circuit  Judges^  and  Triebeu,  District 
Judge. 

[229  Fed.  Rep.  516.] 

OPINION    OF    THE    COURT. 

Trieber,  District  Judge.,  delivered  the  opinion  of  the  conrt: 

The  defendants  were  indicted,  charged  with  violations  of  the  act 
of  Congress  of  February  13,  1913  (37  Stat.,  670).  There  were  three 
counts  in  the  indictment;  but,  as  the  defendants  were  only  convicted 
on  the  first  and  second  counts,  the  third  need  not  be  considered. 

The  first  count  charges  the  defendants  with  entering  a  car.  in  the 
Western  District  of  Oklahoma,  belonging  to  the  Atchison,  Topeka 
&  Santa  Fe  Railway  Co.  (giving  a  description  of  the  numbers  and 
letters  on  the  car),  containing  a  shipment  of  shoes  consigned  by  the 
W.  L.  Douglas  Shoe  Co.,  at  Brockton,  Mass.,  to  the  Boot  &  Shoe 
Hospital,  at  Los  Angeles,  Cal.,  while  en  route  between  these  two 
points,  with  the  intent  to  commit  larceny  therein,  the  shipment  being 
an  interstate  shipment.  The  second  count  charges  the  crime  of 
larceny  from  the  same  car. 

(1)  The  sufficiency  of  the  indictment  is  attacked  upon  several 
grounds.  It  is  claimed  that  the  act  is  unconstitutional,  as  Congress 
possesses  no  police  power ;  that  being  reserved  to  the  States.  While 
it  is  true  that  the  States  reserved  the  police  power  to  themselves,  it 
is  now  equally  well  settled  that  as  to  those  powers,  which  are  ex- 
pressly granted  to  Congress  by  the  National  Constitution,  it  possesses 
a  power  analogous  to  that  of  the  police  power.  In  re  Dehs.,  158  U.  S., 
564,  15  Sup.  Ct.  900,  39  L.  ed.  1092 ;  CmnfeU  v.  United  States,  167 
U.  S.,  518,  17  Slip.  Ct.,  8G-1-,  42  L.  ed.  260;  IJoke  v.  United  States,  227 
U.  S.,  308-323,  33  Sup.  Ct.,  281,  57  L.  ed.,  523,  43  L.  R.  A.  (N.  S.),  906, 
Ann.  Cas.  1913-E,  905;  United  States  v.  Skauver  (D.  C),  214  Fed., 
154.  In  Hoke  v.  United  States,  Mr.  Justice  McKenna,  delivering 
10 


THEFTS   FROM    RAII.ROADS.  11 

the  iinanimons  opinion  of  the  court,  after  reviewing  the  former  de- 
cisions of  tlie  court,  said : 

Thp  principle  established  by  the  casos  is  a  simple  ono,  wlien  rid  cif  confusing 
and  disti-aclini,^  considerations,  that  Congress  has  power  over  transportation 
"  anionj,'  the  several  States,"  that  the  power  is  complete  In  itself,  and  that  Con- 
gress, as  an  incident  to  it,  may  adopt,  not  only  means  necessary,  but  convenient, 
to  its  exercise,  and  the  means  may  have  tlie  quality  of  police  regulations. 

By  the  commerce  clause  Congress  has  the  power  to  regulate  all  in- 
terstate commerce,  and  consecjuently  to  protect  it  from  destruction 
or  depreciation,  the  same  power  which  it  possesses  imdor  that  clause 
of  the  Constitution  which  grants  it  the  power  to  establish  the  Post 
Office  Dei^artment.  Nor  does  it  matter  that  the  same  offense,  breaking 
into  a  railroad  car  for  the  purpose  of  committing  larceny  therein, 
and  the  larceny  itself,  may  be  punished  under  the  laws  of  the  State 
where  the  offense  is  committed,  as  it  is  now  well  settled  that  certain 
acts  may  be  in  violation  of  both  State  and  National  penal  codes,  and 
may  be  prosecuted  in  cither  of  these  courts.  Houston  v.  Moore^  5 
Wheat.,  1,  5  L.  ed.,  19 ;  Fox  v.  Ohio,  5  How.,  410, 12  L.  ed.,  213 ;  United 
States  V.  Marigold.  9  Plow.,  5G0,  13  L.  ed.,  257;  United  States  v. 
Arjona,  120  IT.  S.,  479,  7  Sup.  Ct.,  628,  30  L.  ed.,  728;  Ctohs  v.  North 
Carolina,  132  U.  S.,  131,  10  Sup.  Ct,  47,  33  L.  ed.,  287.  There  is  no 
reason  for  doui)ting  the  constitutionality  of  the  act. 

The  sufficiency  of  the  indictment  is  also  attacked  upon  a  number  of 
grounds.    It  is  claimed  that  neither  of  the  counts  is  specific  enough. 

(2)  In  the  first  count  the  indictment  follows  the  language  of  the 
statute  and  describes  specifically  the  car  which  was  broken  into,  that 
it  was  the  property  of  the  Atchison,  Topeka  &  Santa  Fe  Railway  Co. ; 
that  it  contained  an  interstate  shipment  from  the  State  of  Massachu- 
setts to  the  State  of  California ;  gives  the  name  of  the  consignor  in 
Massachusetts  and  the  consignee  in  California ;  and  that  the  breaking 
into  the  car  was  with  the  intent  to  commit  larceny  therein. 

(3)  The  second  count  also  follows  the  language  of  the  statute, 
charging  that  it  was  an  interstate  shipment,  as  charged  in  the  first 
count,  describes  the  property  stolen,  and,  in  fact,  describes  the  larceny 
with  all  the  particularity  required  by  the  conunon  law.  It  charges  all 
the  facts  necessary  to  enable  the  defendants  to  prepare  for  their  de- 
fense and  to  plead  former  jeopardy  in  case  they  are  again  indicted 
for  these  offenses  after  an  acquittal  or  conviction  on  this  indictment. 
This  is  all  that  is  necessary.  Potter  v.  United  States,  155  U.  S.,  438, 
15  Sup.  Ct.,  144,  39  L.  ed.,  214;  Jolly  v.  United  States,  107  U.  S.,  402, 
18  Sup.  Ct.,  624,  42  L.  ed.,  1085;  Considine  v.  Uiiited  States,  112 
Fed.,  342,  50  C.  C.  A.,  272 ;  Botoers  v.  United  States,  148  Fed.,  379, 
78  C.  C.  A.,  193:  Thompson  v.  United  States,  202  Fed.,  401,  120  C. 
C.  A.,  575,  47  K  R.  A.  (N.  S.),  206;  Brecse  v.  United  States,  226 
U.  S.,  1,  33  Sup.  Ct.,  1,  57  L.  ed.,  97.    The  tendency  of  most  of  the 


]  •_>  THEFTS    FROM    RAILROADS. 

.(Mirts  at  this  day.  and  especially  the  Supreme  Court  of  the  United 
States,  is  to  disi-egard  technicalities  which  can  in  no  way  he  preju- 

irn/ial. 

(4)  It  is  also  chiimed  that  the  indictment  is  defective,  as  it  fails 
to  alle«>e  that  the  railway  company,  the  owner  of  the  car,  was  an 
incorporated  company.  In  view  of  section  1025.  Revised  Statutes 
(Comix  St.  1913.  sec.  1691).  this  is  unnecessary,  as  we  are  unahle  to 
>ei'  how  that  omission  can  have  any  tendency  to  the  prejudice  of  the 
defendant.  Caha  v.  United  States,  152  U.  S..  211-221.  11  Sup.  Ct., 
.-)i:5.  38  L.  ed..  415;  Frishie  v.  United  States,  157  U.  S.,  1()1-1(U-168, 
15  Sup.  Ct.,  586.  39  L.  ed.,  657;  Connors  v.  United  States,  158  U.  S., 
408-411,  15  Sup.  Ct,  951.  39  L.  ed.,  1033;  Xew  York  Central  Rail- 
road Company  v.  United  States,  212  IT.  S..  481^97,  29  Sup.  Ct.,  304, 
53  L.  ed.,  613;  Clement  v.  United  States,  149  Fed..  305,  79  C.  C.  A., 
243,  decided  by  this  court,  and  in  which  certiorari  was  denied. 

T'Tnder  similar  statutes  of  many  States  it  has  been  held  that  it  is 
unnecessary  to  charge  in  the  indictment  that  the  comi)any,  whose 
house  was  broken  into,  or  whose  jirojierty  stolen,  was  an  incor- 
porated corpoi-ation.  Hurke  v.  State.  34  Ohio  St.,  79:  People  v. 
Uoqers,  81  Cal.,  209,  22  Pac,  ^^"l;  Fisher  v.  StaM,  40  N.  J.  Law,  16<): 
^tate  V.  /S'm/^cS',  25  Nev.,  432.  62  Pac,  242. 

(5)  It  is  next  claimed  that  there  can  he  no  conviction  on  both 
counts.  But  this  has  beeji  adversely  decided  in  Morgan  v.  Derine, 
■r.\1  V.  S.,  632.  35  Sup.  Ct..  712.  59  L.  ed..  1153.  Besides,  the  sen- 
tence-^  on  both  counts  iire  the  snuic  and  cnucunvnt. 

:;:  :^  *  *  =:=  *  * 

(7)  The  learned  counsel  for  the  defendants  strenuously  insist  that 
there  was  not  sufficient  evidence  to  warrant  the  findino-  that  the 
crime,  if  committed  by  the  defendants,  Avas  conunilted  in  the  Western 
District  of  Oklahoma.  The  evidence  shows  that  after  the  train  had 
left  the  town  of  Kiowa,  in  the  State  of  Kansas.  Avhich  is  about  one 
mile  north  of  the  Oklahoma  line,  two  men,  whom  he  did  not  recognize 
then,  as  he  Avas  too  far  from  them.  Avere  sitting  at  the  head  end  of 
the  train,  and  that  some  time  after  (hat  the  defendant  Morris  ap- 
peared with  the  shoes.  "When  Morris  appeared  Avith  the  shoes  the 
train  had  proceeded  at  least  14  miles  in  the  Western  District  of  Okla- 
homa. Eacu  if  it  be  conceded  that  the  evidence  Avas  not  sufficient  to 
establish,  beyond  a  reasonable  doubt,  the  breaking  into  the  car  in  the 
AVestern  District  of  Oklahoma,  it  certainly  Avas  sufficient  to  justify 
the  verdict  of  guilty  on  the  second  count,  that  of  larceny,  for  that 
offense  is  a  continuous  offence,  and  although  committed  in  one  dis- 
trict, if  the  stolen  property  is  brought  into  another  district,  with  the 
intent  there  to  feloniously  convert  the  stolen  property,  the  guilty 
party  may  be  tried  in  either  district.  Perara  v.  United  States,  291 
Fed.,  213,  136  C.  C.  A.,  623,  decided  by  this  court. 


THKFTS    KI{(»M     H.MI.KOADS.  13 

(8)  As  bofore  stated,  as  llu-  |MiiiisliiiM'iit  iinposcd  on  both  coiiiit.s  is 
tJic.  same  and  runs  concurrently,  it  can  work  no  prejudice  to  the 
dei'enchmls.  even  if  there  was  no  evidence  to  warrant  the  verdict  of 
guilty  on  the  first  count,  I  he  e\i<h^iice  ch'arly  warranting  a  con\  iction 
(Ml  the  second  count. 

(i))  There  was  no  erroi'  in  the  charge  to  the  jury.  It  was  as 
favoi-ahle  as  the  hiw  permits.  Possession  of  property  recently 
stolen,  if  unexj)hiined.  in  connection  with  other  evidence,  showing 
the  presen(;e  of  the  defendant  at  the  time  and  place  where  the  tlieft 
was  committed,  justifies  a  finding  of  guilty.  United  Stales  v.  Jones^ 
(C.  C),  31  Fed.,  718;  Wiley  v.  State.  92  Ark.,  586,  12-t  S.  W.,  249. 

(10)  Nor  was  it  eri'or  to  refuse  to  give  the  instructions  asked  on 
behalf  of  the  defendants  as  to  the  effect  of  their  good  reputation  in 
the  community  in  which  they  had  lived,  as  the  court  covered  this 
phase  of  the  case  even  more  favorably  to  the  defendaiUs  than  was 
asked  by  their  instruction.  The  court  charged  the  jury  on  that 
point: 

Testimony  has  been  iiitroduted  lici-c  tor  the  purpose  of  showing  tlje  jiood 
repvitation  of  the  defendants  in  the  coiiiniunity  in  wliich  they  have  lived.  That 
testimony  is  competent  for  your  consideration.  In  the  light  of  it  you  should 
view  all  the  evidence  in  the  case  in  determining  the  guilt  or  innocence  of  the 
defendants,  and  whether  you  are  convinced  of  the  defendants'  guilt  beyond  a 
reasonable  doubt,  or  entertain  such  a  reasonable  doubt  of  their  guilt.  But 
you  are  instructed,  if  after  you  have  considered  all  the  evidence,  including  that 
which  has  been  introduced  here  upon  the  subject  of  their  reputation,  you  are 
satisfied  beyond  a  reasonable  doubt  that  the  defendants  are  guilty,  then  it  will 
be  your  duty  to  convict  them,  notwitlistanding  the  evidence  upon  the  subject 
of  their  reputation. 

H(Jf/ington  v.  United  States,  IG-t  U.  S.,  361,  which  counsel  for  these 
defendants  rely  on,  does  not  sustain  their  contention.     *     *     * 
The  judgment  is  affirmed. 

Circuit  Court  of  Appeals,  First  Circuit. 

FRIEDMAN  v.  UNITED  STATES. 

Before  Pltman  and  Dodge,  Circuit  Judges,  and  Browx,  District 
Jitdge. 

[233  Fed.  liep.  429.] 
OPINION    OF    THE    COURT. 

PuTMAx,  Circuit  Judg<\  deliveretl  the  opinion  of  the  court: 

This  indictment  was  laid  under  the  act  of  February  13,  1913,  37 
Stat..  670,  c.  50  (U.  S.  Comp.  St.  1913,  sees.  8603,  8604),  charging 
the  defendant  with  unlawfull}^  receiving  and  concealing  certain 
brasses  stolen  from  a  box  car  at  Springfield  while  constituting  a 
part  of  a  shipment  from  Concord,  X.  H.,  to  Springfield,  Mass.     The 


14  THEFTS   FEOM    RAILROADS. 

merchandise  beloni^ed  to  the  Boston  &  Maine  Railroad  and  was  a 
part  of  its  cars  being  forwarded  to  the  repair  shops  of  the  railroad 
corporation. 

(1)  Claim  is  made  that,  as  this  material  Avas  carried  without 
compensation,  and  was  all  the  time  the  property  of  the  Boston  & 
Maine  Railroad,  it  was  not  within  the  statute.  However,  as  it  was 
being  transported  as  freight  it  was  within  the  letter  of  the  statute, 
and  we  know  of  no  reason  which  takes  it  out  of  it.  The  same  words 
are  often  used  in  many  different  senses,  but  this  word  is  appropriate 
for  the  application  made  of  it  here. 

(2)  Once  in  interstate  commerce  we  think  the  goods  transported 
as  freight  retained  the  character  thus  acquired  and  were  under  the 
protection  of  the  act,  like  mail  matter,  until  they  reached  their  ulti- 
mate destination. 

(3,  4)  The  plaintiff  in  error  fails  to  satisfy  us  that  the  act.  thus 
\mderstood,  violates  any  constitutional  provision.  Whoever  receives 
stolen  goods,  knowing  them  to  be  stolen,  takes  the  risk,  in  our  opinion, 
of  their  having  been  stolen  during  transportation  in  interstate  com- 
merce and  of  their  being  thus  Avithin  the  protection  of  the  act. 

The  plaintiff  in  error  also  fails  to  satisfy  us  that  there  was  preju- 
dicial error  in  any  of  the  exclusions  of  testimony  to  which  he 
excepted. 

The  judgment  of  the  District  Court  is  affirmed. 


Circuit  Court  of  Appeals,  Sixth  Circuit. 

KASLE  V.  UNITED  STATES. 

Before  Warrington  and  Denison,  Circuit  Judges,  and  Hollister, 
District  Judge. 

[233  Fed.  Rep.  878.] 

OPINION    or    THE    COURT. 

Warrington,  Circuit  Judge,  delivered  the  opinion  of  the  court: 

Kasle  was  convicted  and  sentenced  under  an  indictment  charging 
him  with  unlawfully  and  feloniously  having  in  his  possession  certain 
goods  and  chattels,  knowing  them  to  have  been  stolen  from  a  railroad 
freio-ht  station  while  in  course  of  shipment  in  interstate  commerce. 
A  motion  to  quash  the  indictment  was  overruled.  At  the  close  of  the 
evidence  offered  by  the  Government,  the  defendant  moved  that  the 
evidence  be  withdrawn  and  a  verdict  directed  in  his  favor,  and  the 
motion  was  denied.  Again,  at  the  close  of  all  the  evidence  defendant 
renewed  his  motion  for  a  directed  verdict  on  the  ground  that  there 
was  no  evidence  to  sustain  the  allegations  of  any  of  the  counts  of  the 


THEFTS    FROM    KAILKOADS.  15 

indictment,  which  was  griinted  as  to  the  first  count  and  overruled  as 
to  the  second  and  third  counts.  Aside  from  the  ruling  upon  the  first 
count,  exception  was  reserved  and  error  assigned  upon  each  of  the 
rulings  mentioned;  and  some  twenty  additional  assignments  are  pre- 
sented upon  exceptions  reserved  in  the  course  of  the  trial  concerning 
rulings  in  admitting  and  rejecting  testimony  and  certain  instructions 
contained  in  the  charge  to  the  jury.     Defendant  prosecutes  error. 

1.  The  motion  to  quash  the  indictment  is  based  on  six  grounds,  the 
first  four  of  which  are,  in  substance,  that  at  the  time  the  goods  and 
chattels  are  alleged  to  have  l)een  in  defendant's  possession  it  docs  not 
appear  in  any  of  the  counts  (a)  that  defendant  knew  they  had  been 
stolen,  taken,  or  carried  away  from  interstate  commerce,  (h)  that 
they  were  interstate  commerce  or  a  part  thereof,  (r)  that  they  re- 
tained their  character  as  an  interstate  shipment  of  freight,  {d)  that 
they  had  not  lost  their  cliaracter  as  part  of  interstate  commerce;  and 
the  two  remaining  grounds  are  (c)  that  the  indictment  and  the 
counts  respectively  do  not  with  suHicient  certainty  describe  the  of- 
fense charged  so  as  fairly  to  inform  defendant  of  its  nature  and  of 
what  he  would  be  called  upon  to  meet,  and  (/)  that  the  indictment 
and  counts  do  not  state  facts  sufficient  to  constitute  an  offense  against 
the  United  States. 

(1)  The  indictment  is  based  on  an  act  of  Congress  passed  February 
13,  1913  (37  Stat.,  G70).  The  applicable  portion  of  this  statute  is  as 
follows : 

*  *  *  Whoever  shall  steal  cr  unlawfully  take,  carry  away,  or  conceal,  or 
by  fraud  or  deception,  obtain  from  any  railroad  car,  station  house,  platform, 
depot,  steamboat,  vessel,  or  wharf,  with  intent  to  convert  to  his  own  use  any 
goods  or  chattels  moving  as  or  which  are  a  part  of  or  which  constitute  an  inter- 
state or  foreign  shipment  of  freight  or  express,  or  shall  buy,  or  receive,  or  have 
in  his  possession  an-y  such  goods' or  chattels,  knowing  the  same  to  have  been 
stolen,  *  *  *  shall  in  each  case  be  fined  not  more  than  $5,000  or  imprisoned 
not  more  than  ten  years,  or  both. 

The  indictment  contains  three  counts ;  but  as  count  1  was  in  effect 
eliminated,  as  stated,  it  is  necessary  to  consider  only  counts  2  and  3. 
Except  as  to  dates  of  the  offenses  charged,  the  kinds  and  the  points 
of  origin  and  destination  of  the  goods  and  chattels  involved  (the 
second  count  describing  10  pigs  of  tin,  comprising  about  1,119 
pounds,  and  the  third,  2  barrels  of  scrap  brass),  the  two  counts 
remaining  are  alike;  the  second  count  is  printed  in  the  margin. 

(Footnote.)  {Count  II.  And  the  grand  jurors  aforesaid  upon  their  oath 
aforesaid,  do  further  present  and  find  that  the  said  Sam  Kasle,  heretofore,  to 
wit,  on  or  about  the  7th  day  of  September,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  thirteen,  at  the  city  of  Toledo,  Lucas  County.  Ohio,  in  the 
division  and  district  aforesaid,  and  within  the  jurisdiction  of  this  court,  un- 
lawfully and  feloniously  did  knowingly  have  in  his  possession  certain  goods  and 
chattels,  to  wit,  ten  pigs  of  tin,  consisting  of  about  eleven  hundred  anil  nineteen 


16  THEFTS   FBOM    RAILROADS. 

pounds  of  till,  wiiicli  .said  goods  and  cliattels  had  tlieretoiore,  to  wit,  on  or  about 
the  7th  day  of  September.  1913,  been  a  part  of  an  interstate  shipment  of  freiglit 
in  coui'se  of  shipment  in  interstate  commerce,  and  had  l)een  unlawfully  and  felo- 
idou.sly  stolen,  taken,  and  carried  away  from  a  certain  railroad  station  house  at 
Toledo,  in  the  county  of  I^ucas.  Ohio,  known  and  described  as  the  New  York 
(Jentral  Terminal  Freight  Station,  at  Toledo  aforesaid,  while  said  goods  and 
("battels  were  .so  in  cour.se  of  shipment  iu  interstate  commerce  from  the  Pope 
Metals  Company,  at  New  York,  in  the  State  of  New  York,  to  the  Union  Steel 
Screen  Company,  at  Albion,  in  the  State  of  ^Michigan,  he,  the  said  Sam  Kasle,  at 
the  time  and  place  aforesaid,  when,  as  aforesaid,  he  so  unlawfully  and  feloni- 
ously had  the  said  goods  and  chattels  in  his  possession,  well  knowing  the 
same  to  have  been  stolen — contrary  to  the  form  of  the  statute  of  the  United 
States  in  .such  case  made  and  iirovided,  and  against  the  peace  and  dignity  of 
the  United  States.) 

Comparison  of  the  allegations  of  the  count  with  the  first  four 
grounds  stated  in  the  motion  to  quash  will  .show  these  grounds  to  be 
without  merit,  since  defendant  was  charged  with  knowingly,  and  so 
unlawfully  and  feloniously,  having  in  his  possession  distinct  goods 
and  chattels  which  had  been  .stolen,  taken,  and  carried  away  from  a 
named  railroad  station  in  Toledo,  Ohio,  while  in  course  of  shipment 
in  interstate  commerce  between  points  named  in  the  counts.  It  is 
true,  as  the  first  ground  of  the  motion  to  quash  states,  that  it  is  not 
charged  that  at  the  times  the  goods  and  chattels  are  alleged  to  have 
been  in  his  possession  defendant  knew  they  had  been  stolen  from 
interstate  commerce. 

(2)  As  we  interpret  the  statute  such  an  idlegation  is  not  necessary. 
One  who  knowingly  receives  stolen  chattels  must  do  so  at  the  peril 
of  their  having  been  stolen  while  in  course  of  interstate  transporta- 
tion; indeed,  it  is  not  perceived  why  the  thief  .should  escape  convic- 
tion under  this  statute  just  because  he  did  not  know  the  points  of 
origin  and  destination.  Manifestly,  both  the  receiver  and  the  thief 
are  chargeable  with  knowledge  of  the  act  of  Congress  forbidding 
this  particular  theft,  quite  as  certainly  as  they  are  of  a  state  statute 
prohibiting  theft  generally.  The  stattis  of  the  articles,  in  the  sense 
of  being  interstate  or  intrastate  in  character,  can  not  in  the  nature  of 
things  affect  the  fact  either  of  the  stealing  or  receiving  alleged :  and 
the  statute,  whether  Federal  or  state,  is  at  bottom  aimed  again.st 
stealing  or  receiving.  The  most,  then,  that  can  be  said  of  the  object 
of  allegation,  as  well  as  proof,  touching  the  interstate  character  of 
the  articles  is  to  show  the  existence  of  the  condition  which  lirought 
the  subject  within  the  Federal  power  and  jurisdiction. 

(3-6)  The  last  two  grounds  of  the  motion  to  quash,  hoAvever.  pre- 
sent some  difficulties.  Ownership  of  the  goods  and  chattels  described 
in  counts  2  and  3  is  not  in  terms  laid  in  any  particular  person  or  com- 
pany, either  by  absolute  or  qualified  title,  at  the  times  the  articles 
were  severally  alleged  to  have  been  "  feloniously  stolen,  taken,  and 
carried  away  from  a  certain  railroad  station  house     *     *     *     known 


THKKTS    b\H)M    HAil.KOADS.  17 

iiiuJ  (N'scribed  as  tlie  Xt-w  York  Central  Ti'iiiiiiuil  Freitjlit  Station." 
Xfither  the  name  of  tlic  owner  of  the  station  nor  any  exeiise  for  its 
omission  is  to  be  fouml  in  the  counts.  Presumably  the  owner  of  the 
-tat ion  hohl  an  interest  in  the  jjoods  and  chattels  which  was  suffi- 
cient l"or  all  purposes  of  the  indictment.  The  rule  is  that  specific 
()wneisliip  must  be  alleged  and  proved,  but  a  special  property,  such 
as  that  of  a  bailee,  carrier,  or  the  like,  in  jjood.-?  .stolen,  is  sufficient 
f<tr  puiposes  of  an  indictment,  say,  for  larceny  (2  P2ast's  P.  C.,  652; 
1  Wharton  Crim.  Law,  sec.  032;  Wharton  American  Crim.  Law, 
|)j).  <ir)7,  058;  Dtuicr  v.  Comvionivcalf/K  •">  S.  W..  48,  9  Ky.  Law  Rep., 
277.  278;  Cominoniomlth  v.  F'mn^  108  Mass.,46G,  108;  Conimomoealth 
\.  h'abin.  165  Mass.,  453,  464,  43  N.  E.,  200;  Allen  v.  State,  1.31  Ala., 
151),  165,  32  South..  318)  ;  and  in  this  respect  there  is  no  difference 
in  principle  between  the  olt'ense  of  laiceny  and  that  of  recei\ing 
stolen  goods  (3  Bishop's  New  Crim.  Procedure,  sec.  982)  ;  indeed, 
in  his  treatment  of  the  subject  of  indictments  for  receiving  stolen 
goods,  Ml-.  Bishop  says:  *'  The  owner's  name  is  e>sential  in  identifica- 
tion: hence  to  be  stated  if  known"  (/f/.,  sec.  983;  State  v.  McAloon. 
10  Me.,  133.  135:  State,  v.  Polland,  53  ]Me.,  121,  125;  Miller  v.  People, 
13  (\)1()..  1()G.  167.  21  Pac,  1025;  Brothers  v.  State,  22  Texas  App., 
147.  462,  3  S.  W..  737;  Ztvekj  v.  State  (1913)  74  Tex.  Cr.  R.,  306. 
171  S.  W..  747,  749)  ;  and  the  rule  so  laid  down  by  Bishop  is  in  etfeet 
lecognized  in  Kirhij  v.  Un'ded  States,  174  U.  S.,  47.  61,  19  Sup.  Ct.. 
574,  43  L.  ed.,  809,  where  contention  that  the  indictment  was  defective 
because  it  did  not  allege  ownership  by  tlie  United  States  of  the  stolen 
articles  at  the  time  they  were  alleged  to  have  been  feloniously  re- 
ceived by  the  accused  was  denied,  but  the  reason  given  was  that  the 
indictment  alleged  the  articles  to  be  ''the  property  of  the  United 
States."  The  present  counts  2  and  3  do.  however,  name  the  con- 
signees of  the  goods  and  chattels  in  (Question,  the  name  stated  in  the 
second  being  Union  Steel  Screen  Co..  and  in  the  third  Koblitz,  Kohn 
&  Co.;  and  ordinarily  this  would  be  sufficient  for  all  purposes  of 
identification  of  the  articles  in  dispute  and  so  of  the  indictment,  since 
delivery  to  a  common  can-ier  is  delivery  to  the  consignee  in  the 
absence  of  agreement  to  the  contrary,  even  though  the  carrier  is  not 
designated  by  the  consignee.  Commonicealth  v.  Sullivan,  104  Mass., 
552,  554.  But  here  again  objection  is  urged,  and  for  the  reason  that 
the  consignee's  names  are  indefinite  in  that  they  may  be  either  cor- 
porations, joint-stock  associations,  or  partnerships.  An  ()l)jection  of 
this  character,  certainly  as  respects  the  present  second  count,  was 
recently  disallowed  in  Morris  v.  United  States  (229  Fed..  516.  520. 

C.  C.  A., ,  and  citations  (C.  C.  A.,  8)).  when  the  court  was 

considering  an  indict nient  l)ased  on  the  statute  involved  in  the  instant 
case  and  a  failure  to  allege  therein  that  the  railway  company,  owning 


18  THEFTS   FROM    RAILROADS. 

the  car  from  which  the  property  was  stolen,  was  an  incorporated 
conipan}'.  AVe  agree  with  the  ruling  there  made,  that  in  view  of 
section  1025,  Rev.  Stat.,  such  an  allegation  was  unnecessary,  since 
as  the  court  said  (229  Fed.,  520, C.  C.  A., )  : 

"  We  are  unable  to  see  how  that  omission  can  have  any  tendency 
to  the  prejudice  of  the  defendant."  And  see  ruling  of  court  in 
Burke  v.  State  of  Olilo^  34  Ohio  St.,  79,  Syl.  1,  and  opinion  of  the 
late  Judge  Okey,  81,  82. 

Furthermore,  since  the  consignee  named  in  the  third  count,  Kob- 
litz,  Kohn  &  Co.,  is  seemingly  a  partnership,  and  since  ownership 
of  the  property  described  is  not  laid  in  the  name  of  any  pei*son 
purporting  to  be  a  partner,  it  may  be  Avell  to  look  further  into  the 
statute  itself.  While  such  objections  as  we  have  been  considering 
might  be  avoided,  and  ought  to  be,  through  careful  preparation  of 
indictments,  still  it  is  plain  enough  that  the  act  of  Congress  here 
involved  was  not  intended  to  require  strict  observance  of  either 
all  the  rules  of  the  common  laAv  upon  the  subject  of  certainty  in 
criminal  pleading  or  those  growing  out  of  distinct  statutes  which 
were  intended  to  change  and  modify  many  of  such  rules.  It  is  to 
be  observed,  too,  that  the  relevancy  or  not  of  decisions,  which  in 
large  measure  are  controlled  by  local  statutes,  is  to  be  tested  by  com- 
parison of  those  statutes  with  the  particular  statute  in  issue.  The  act 
now  in  question  is  designed  to  protect  articles  while  in  course  of  inter- 
state shipment.  When  the  articles  of  freight  now  in  dispute  are  con- 
sidered in  connection  with  their  points  of  origin  and  destination 
and  the  "  railroad  station  house,"  as  such  points  and  station  are 
described  in  the  counts,  it  is  clear  that  for  purposes  of  the  indict- 
ment the  freight  articles  are  to  be  treated  as  having  been  "  in  course 
of  shipment  in  interstate  commerce"  at  the  times  they  are  alleged 
to  have  been  stolen ;  and  it  is  equally  clear  that  when  defendant  was 
required  to  meet  the  allegations  charging  him  with  having  posses- 
sion of  the  articles  his  opportunities  for  identifying  them  were  quite 
as  available  as  they  would  have  been  if  title  to  the  articles,  and 
also  to  the  station,  had  been  laid  in  the  name  of  the  owner  of  the 
station.  The  station  was  the  natural  place  for  the  custody  and 
control  of  such  articles  until  the  movement  toward  their  fixed  des- 
tinations should  actually  be  resumed;  and  the  charge  made  in  the 
indictment  that  the  goods  were  "  stolen,  taken,  and  carried  awa,y  " 
from  this  station  may  be  said  to  have  followed  the  language  of  the 
statute.  A  statute  and  an  indictment  somewhat  similar  to  the  stat- 
ute and  indictment  here  involved  were  under  consideration  in  United 
States  v.  Coombs,  37  U.  S.  (12  Pet.),  72,  9  L.  ed.,  1004.  It  is  true,- 
however,  that  the  court  was  there  called  upon  to  determine  only  a 
question  of  jurisdiction  which  arose  under  the  indictment;  the  act 
forbade  any  person  to  (37  U.  S.  (12  Pet.),  74,  9  L.  ed.,  1004)— 


THEFTS   FROM    RAILROADS.  19 

plunder,  steal,  or  destroy  any  money,  goods,  merchandise,  or  other  effects  from, 
or  belonging  to,  any  ship  or  vessel,  •  •  *  which  shall  be  in  distress,  or 
which  shall  he  wrecked,  lost,  stranded,  or  cast  away,  upon  the  sea,  or  upon  any 
reef,  shoal,  bank,  or  rocks  of  the  sea,  or  In  any  place  within  the  admiralty  or 
maritinio  jurisdiction  of  the  United  States. 

Although  the  question  of  ownership,  with  which  we  are  now  con- 
corned,  (lid  not  arise  in  that  case,  it  is  noteworthy  that  the  indict- 
ment is  there  stated  (37  U.  S.  (12  Pet.),  74,  9  L.  ed.,  1004)  to  have 
charged  that  the  merchandise  stolen  "  belonged  to  the  ship  Bristol^ 
the  said  ship  then  being  in  distress,"  etc.  {Id.)  It  hardly  is  to  be 
inferred  that  absolute  title  to  such  merchandise  was  in  tlie  owner  of 
the  ship,  though  the  merchandise  might  well  have  been  in  the  custody 
and  control  of  the  ship  for  purposes  of  transportation;  and  since  no 
question  concerning  the  form  of  the  indictment  was  certified  it  is  to 
be  presumed  that  the  allegation  that  the  merchandise  "  belonged " 
to  the  ship  was  open  to  such  an  interpretation  as  this  and  also  was 
regarded  as  sufficient  to  identify  the  stolen  articles  and  so  to  sustain 
the  indictment.  We  are  led  to  believe  upon  the  whole  that  wherever 
the  place  of  custody  and  control  of  articles  of  interstate  freight 
alleged  to  have  been  stolen  therefrom  falls  within  the  language  of  the 
statute  and  is  permanent  in  character  and  adapted  and  generally 
used  for  such  custody  and  control,  like  a  railroad  station,  it  is  not 
essential  to  the  validit}^  of  an  indictment  similar  in  object  to  the 
present  one  that  ownership  in  either  the  place  or  the  articles  be  dis- 
tinctly alleged  {State  v.  Casavant,  64  Vt.,  405,  407,  23  Atl.,  636) ; 
and  this  is  for  a  stronger  reason  than  can  be  ascribed  even  to  a  dis- 
tinctive though  stranded  ship  like  the  Bristol.  These  views  w^ill 
not  of  course  be  interpreted  to  apply  to  a  movable  place  of  custody, 
such  as  a  freight  car,  from  which  goods  claimed  to  have  been  stolen 
and  subsequently  feloniously  received  in  possession  are  made  the 
subjects  of  indictment.  The  necessity  for  applying  the  rule  of  identi- 
fication in  that  kind  of  a  case  may  be  conceded,  for  the  reason  that 
a  place  of  custody  described  onl}'  as  a  freight  car  would  imply  no 
such  distinct  identity  as  does  a  freight  terminal  station  in  a  city; 
but  plainly  that  reason  can  have  no  application  here.  It  was  neces- 
sary, it  is  true,  that  the  elements  of  the  offense  charged  should  be 
stated  with  such  particularity  as  fairly  to  apprise  defendant  of  what 
he  must  meet,  and  in  the  event  of  conviction  or  acquittal  to  enable 
him  to  plead  the  indictment  in  bar  of  any  subsequent  prosecution  for 
the  same  offense;  and  these  requirements  we  think  were  sufficiently 
met  {Armour  Packing  Co.  v.  United  States,  209  U.  S..  56,. 83,  28  Sup. 
Ct.,  428,  52  L.  ed.,  681;  Cochran  and  Sayre  v.  United  States,  157 
U.  S.,  286,  290, 15  Sup.  Ct.,  628,  39  L.  ed.,  704;  Grand  Rapids  d-  /.  7??/. 
Co.  V.  United  States,  212  Fed..  577,  583,  129  C.  C.  A.,  113,  and  cita- 
tions (C.  C.  A.,  6))  ;  the  motion  to  quash  the  indictment  was  there- 
fore rightly  denied. 


20  THKIIS    FliOM     KAtl.ltOADS. 

(7.  8)  -1.  TIk'  ussi^iiiiient  c-oiui-riiiiii:-  deiiiul  of  defendant's  motitni 
to  dii^ect  a  verdict  at  tlie  close  of  the  (xovernuient's  evidence  is  not 
available,  since  the  alleged  error  was  waived  by  the  introduction  of 
evidence  for  defendant  {ISandals  v.  United  States^  213  Fed.,  569, 
573,  130  (C.  C.  A.,  149) ;  Twker  v.  United  States,  224  Fed.,  833,  837. 
140  C.  C.  A.,  279  (C.  C.  A.  (*)));  but  such  waivej-  did  not  affect  the 
right  of  defendant  to  have  the  sufficiency  in  law  of  the  entire  evidence 
considered  upon  the  motion  to  direct  made  at  the  close  of  all  the 
testimony  {Tucker  v.  United  States,  supra,  224  Fed..  837,  140  C.  C. 
A.,  279).  Our  consideration  of  all  the  evidence,  however,  satisfies  us 
that  the  last  motion  to  direct  was  rightly  overruled  as  to  the  second 
and  third  counts.  In  reaching  this  conclusion  we  are  not  unmindful 
of  the  contention  that  defendant  was  charged  with  knowingly  re- 
ceiving stolen  property,  and  that  the  evidence  tended  at  most  to  show 
only  that  he  received  embezzled  property.  This  is  a  misapprehension 
of  the  relation  borne  to  the  property  in  dispute  by  the  tallymen,  who 
appear  to  have  had  more  or  less  to  do  with  its  alleged  theft.  They 
were  to  "  check  freight  in  and  out  of  cars,"  rather  than  to  take  it  into 
thc^ir  possession  and  control ;  they  were  not  intrusted  with  the  prop- 
erty in  the  sense  that  their  acts  of  taking  and  disposing  of  it  for  their 
individual  benefit  amounted  to  embezzlement;  such  a  taking,  if  it 
occurred,  was  simply  larcenous.  State  v.  6'.  /^.  Smith,  250  Mo.,  350. 
367,  157  8.  W.,  319.  The  decision  in  that  case  is  sufficient  to  point 
the  distinction  which  renders  the  decisions  of  the  same  court,  relied 
on  b}^  defendant,  inapplicable  {State  v.  Gennusd,  258  Mo..  273,  274. 
167  S.  W.,  \m\  State  v.  George,  263  Mo.,  686,  173  S.  W.,  1077,  1078)  : 
for  in  the  latter  cases  the  property  in  question  Avas  intentionally' 
committed  to  teamsters  for  purposes  of  transportation  and  specific 
delivery,  and  after  possession  was  taken  the  conversion  was  committed 
in  the  course  of  executing  the  duty. 

(9)  3.  We  come  next  to  the  errors  assigned  respecting  the  charge 
of  the  court.  The  first  instruction  to  which  exception  was  reserved 
dealt  with  the  question  whether  the  goods  and  chattels  "  w-ere  articles 
in  interstate  transportation  and  were  stolen.'"  and  also  wnth  the  cir- 
cumstances which  might  be  considered  in  determining  that  (juestion. 
The  court  stated  that  both  the  pig  tin  and  the  brass  seemed  to  have 
been  subjects  of  intei-state  transportation,  and  that  the  jury  might 
"use  the  circumstances  surrounding  these  shi])ments  and  any  other 
circumstances  that  give  to  you  (the  jury)  the  right  to  indulge  in  rea- 
sonable inferences  that  men  use  under  like  circumstances  to  deter- 
mine "  the  fact  or  not  of  theft.  The  exception  mentioned  concerned 
this  latter  portion.  It  is  true  that  this  instruction  affected  defendant 
in  the  sense  that  he  could  not  be  rightfully  convicted  of  knowingly 
receiving  stolen  goods  that  Avere  not  shown  to  have  been  stolen,  yet  in 


THEFTS    FKf)M     KAI  I.KOADR.  21 

our  view  of  tlii'  evidence  tlic  insi  iiicl  ion  could   not  li;i\c  pii-jinlifefl 
tlie  (lefeiulsmt.     roUowincr  that  subject  it  was  said: 

11  you  (lelcnniiu-  lli:it  yon  can  identify  as  stolen  two  l)arn'is  of  hijiss  or  any 
IKHtion  of  the  sliipniont  of  l)rass  referrod  to  in  the  exhibits  in  question,  or  tlie 
pij;  tin  refen-ed  to  in  llie  exliihits  in  (|nestioii.  if  tliat  identifleation  satisfies  you 
iK'yonii  :i  reason:il)le  (loni»t.  tlien.  of  course,  lo^'icaily,  your  next  inquiry  is 
wlietlier  eillier  or  J)otli  (tf  those  classes  of  articles,  on  one  count  or  the  other, 
came  into  the  possession  of  the  defendant  Sam  Kasle.  You  must  <-!irry  the 
ideiititication,  of  course,  to  him.     *     *     * 

'I'hen,  if  you  lind.  heyoml  a  nasmiahle  doiil)!.  i-iliier  this  itrass  or  this  riu  in 
Sam  Kasle's  i)ossesslon,  .mhi  imisi  proceed  then  to  determine  whether  he  had 
pos.sossion  of  ciilier  or  IkhIi  of  tho.se  clas.scs  of  articles,  knowinj.'  that  they 
were  stolen. 

I  may  say  to  .\<>u.  in  tiie  tirst  place,  that  the  law  is  that  the  possession  of 
stolen  propert.\  ii  iimies  knowledue  in  the  po.ssessor  that  it  was  and  is  stolen, 
unless  the  jHisse.ssoi-  explains  his  ]>ossession  in  such  a  way  as  to  free  his  mind 
(as  to  free  himV)   from  tliat  ijiesmnption. 

The  law  also  is  that  one  who  acquires  possession  of  stolen  property  under 
conditi()ns  and  circumstances  which  would  put  a  reasonable  man  who  was 
honest  upon  inquiry  as  to  the  character  of  that  property,  is  deemed  fo  have  just 
such  knowledire  of  the  character  of  the  property  as  would  come  to  him  had  he 
m.Mde  the  i-easonable  inquiries  as  to  the  source  of  the  property  which  would 
occur  to  an  honest  man  of  averau(>  intcMlisence  under  the  circumstances  in 
which  he  .^ot  it;  that  one  who  takt's  into  his  possession  personal  property  is 
char.s;eahle  with  the  duty  of  givin.i;  attention  to  those  circumstances  attending 
his  reception  of  the  property  which  in  your  .iudgment  should  have  been  deemed 
by  him  at  the  time  to  be  suspicious  and  suffirestive  that  the  title  of  him  who 
was  trausferriuK  it  was  op<'n  to  (pu^stion. 

As  we  understand  these  portions  of  the  charge,  the  jury  was  in 
substance  instructed  to  find:  (a)  Whether  the  goods  and  cliattels 
in  issue  were  articles  of  interstate  transi)ortation;  {h)  whether  tliey 
were  stolen  while  in  course  of  such  transportation;  (c)  whether 
defendant  came  into  possession  of  them:  and,  if  these  findings  were 
in  the  afhrmative,  then  to  find  (d)  wdiether  defendant  received  the 
articles  knowing  them  to  have  been  stolen.  Later  it  vA^as  said  of  the 
statute: 

This  law  makes  one  of  the  essential  elements  of  the  offense  po.s.session  with 
knowledge. 

If  error  was  committed  in  respect  to  the  ultimate  issue  of  fact,  it 
was  not  in  defining  it  but  in  stating  the  tests  to  which  the  jury  might 
resort  in  resolving  the  issue  one  way  or  the  other.  One  of  the  tests 
was  in  effect  that  a  person  who  receives  property,  which  in  fact  is 
stolen  property,  under  circumstances  which  would  put  a  reasonable 
and  honest  man  upon  inquiry,  is  chargeable  with  such  knowledge  in 
that  behalf  as  would  have  come  to  him  had  he  made  such  reasonable 
inquiries,  touching  the  source  of  the  property,  as  would  have  oc- 
curred "to  an  honest  man  of  average  intelligence."  Another  test 
was  that  one  receiving  personal  property  is  chargeable   with   the 


22  THEFTS   FROM    RAILROADS. 

particular  effect  of  "those  circumstances  attending  his  reception  of 
the  property,"  which,  in  the  judgment  of  the  jury,  "  should  have  been 
deemed  by  him  at  the  time  to  be  suspicious  and  suggestive  that  the 
title"  of  the  transferor  "was  open  to  question." 

Plainly  such  tests  as  these  of  guilty  knowledge  on  the  part  of  the 
accused  subjected  him  to  a  standard  of  conduct  and  of  capacity  to 
detect  crime,  Avhich  the  jury  might  conclude  to  be  the  standard  of 
reasonable  and  honest  men  of  average  intelligence  when  acting  under 
circumstances  like  those  which  might  be  found  to  have  existed  here. 
The  effect  of  such  tests  Avas  to  charge  the  accused  with  guilty  knowl- 
edge or  not  upon  what  the  jur}^  might  find  would  have  induced  belief 
in  the  mind  of  a  man  such  as  they  were  told  to  consider,  rather  than 
the  belief  that  was  actually  created  in  the  mind  of  the  accused;  or, 
at  least,  the  accused  might  be  condemned  even  if  his  only  fault  con- 
sisted in  b6ing  less  cautious  or  suspicious  than  honest  men  of  aver- 
age intelligence  are  of  the  acts  of  others.  The  result  of  the  rule 
of  the  charge  would  be  to  convict  a  man,  not  because  guilty,  but  be- 
cause stupid.  The  issue  was  whether  the  accused  had  knowledge — 
not  Avhether  some  other  j)erson  would  have  obtained  knowledge — 
that  the  goods  had  been  stolen.  The  circumstances  must  have  had 
that  effect  upon  the  mind  of  the  accused,  to  constitute  knoAvledgc 
in  him.  The  issue  must  be  determined  upon  the  individual  test  of 
the  accused.  It  may  well  be  that  the  tests  stated  in  the  charge  are 
proper  enough  to  fix  civil  liability  for  the  acts  or  omissions  of  a 
defendant,  but  hardly  to  fasten  upon  him  an  intent  to  commit  a 
felony.  There  is  some  conflict  in  the  decisions  upon  this  subject,  but 
we  think  the  tests  of  the  charge  are  opposed  to  the  clear  weight  of 
authority;  this  may  be  fairly  illustrated  by  the  following:  State  v. 
Ali>ei%  88  Vt.,  191,  204,  92  Atl.,  32;  Peterson  v.  United  States,  213 
Fed.,  920,  922,  923,  130  C.  C.  A.,  398  (C.  C.  A.,  9) ;  State  v.  Rountree, 
80  S.  C,  387,  391,  61  S.  E.,  1072,  22  L.  R.  A.  (N.  S.),  833;  State  v. 
Daniels,  80  S.  C,  368,  371,  61  S.  E.,  1073 ;  State  v.  Goldman,  65  N.  J. 
Law,  395,  397,  47  Atl.,  641 ;  Cohn  v.  People,  197  111.,  482, 485,  64  N.  E., 
306;  Robinson  v.  State,  84  Ind.,  452,  456;  State  v.  Denny,  17  N.'  D., 
519,  525,  117  X.  W.,  869 ;  Forrester  v.  State,  69  Tex.  Cr.  R.,  62,  152 
S.  W.,  1041,  1042;  Pickering  v.  United  States,  2  Okl.  Cr.,  197,  101 
Pac,  123, 124;  Dr^mmond  v.  State,  103  Miss.,  221,  224,  60  South.,  138. 
(10)  It  is  not  meant  to  say,  however,  that  conviction  can  not  be 
established  upon  circumstantial  evidence.  While  there  was  direct 
testimony  and  specific  denial  of  guilty  knowledge  on  defendant's 
part,  yet  there  were  in  addition  circumstances  of  more  or  less  tend- 
ency to  show  as  well  as  to  refute  such  knowledge;  the  relevancy  of 
such  circumstances,  when  not  too  remote,  can  not  of  course  be  rightly 
denied ;  but,  apart  from  instructions  as  to  whether  the  property  was 


THEFTS   FROM    RAILROADS.  23 

in  fact  stolen,  no  cliHiciilty  is  peiceivcd  in  applying  the  circumstances 
directly  to  tho  accused  with  a  view  of  testing  the  question  of  notice 
or  Icnowledo-c  on  his  part,  at  the  times  he  received  the  goods  and 
chattels,  that  they  had  been  stolen   (if  in  fact  they  were  stolen). 

(11)  Another  feature  complained  of  in  the  chai-ge  is,  as  already 
shown,  that  the  law  is  stated  to  be: 

Tliut  tlu>  i)ossession  of  stolen  property  imputes  knowledge  in  the  posse.-«or 
tliat  it  was  and  is  stolon,  unless  the  possessor  ex[ilains  his  possession  in  such 
a  way  as  1o  free  liis  mind  (:is  to  free  him?)  from  thnt  presumption. 

We  gather  from  the  context  that  this  portion  of  the  charge  was 
intended  to  be  applied  only  in  case  it  should  first  be  found,  as 
already  stated,  that  the  articles  in  issue — the  tin  and  the  brass,  or 
either — had  been  stolen  while  in  course  of  interstate  transportation, 
and  that  either  or  both  had  come  into  defendant's  possession ;  but  in 
that  event  the  jury  was  to  approach  the  ultimate  question  subject  to 
a  presumption  that  defendant  received  the  articles  with  knowl- 
edge that  they  had  been  stolen.  This  question  was  of  course  vital 
to  the  defendant.  He  was  not  charged  with  the  theft;  the  only 
tendency  of  the  proofs  in  that  behalf  is  that*  the  theft  was  com- 
mitted by  others;  and  these  acts,  if  committed,  constituted  larceny. 
The  charges  that  defendant  had  the  articles  in  his  possession  with 
knowledge  of  the  theft  do  not  in  terms  allege  that  such  possession 
was  taken  in  aid  of  the  larceny,  hence  each  charge  made  against 
defendant  was  for  an  offense  distinct  from  the  antecedent  larceny. 
The  in.stant  case  therefore  differs  from  a  case  where,  for  instance, 
the  statute  so  defines  the  act  of  receiving  stolen  property  and  that 
of  stealing  it  as  in  effect  to  make  the  two  offenses  the  same  in  char- 
acter. Tender  a  statute  of  that  kind  the  receipt  may  amount  to 
larceny,  as  well  as  the  theft;  and  so  the  same  presumption  arising 
from  recent  possession  that  would  be  applicable  to  the  thief  might 
also  be  to  the  receiver.  Thus  in  Martin  v.  Stnte,  10-1  Ala.,  71,  78, 
16  South.,  82,  under  an  indictment  for  both  larceny  and  knowingly 
receiving,  it  was  "held  that  recent  possession  of  stolen  goods  im- 
poses on  the  posset^sor  the  onus  of  explaining  the  possession."  etc.; 
but,  as  Ave  understand,  the  case  arose  under  a  statute  in  which  it  is 
provided : 

Any  person  wlio  huys,  receives,  conceals,  or  aids  in  concealing  any  personal 
property  whatever,  knowing  ^hat  it  has  been  stolen,  and  not  having  the  intent 
to  restore  it  to  the  owner,  must,  on  conviction,  be  punished  as  if  he  had  stolen  it. 
(2  Crim.  Code  Ala..  1S96,  sec.  5054,  p.  369.) 

To  the  same  effect  is  Jenkins  v.  SfMte,  62  AVis..  49,  21  N.  AV.,  232, 
and  also  the  statute  (2  Sanborn  &  Berryman  Ann.  Stat.,  Wis.,  sec. 
4417) ;  moreover,  the  decisions  mostly  relied  on  there  relate  to 
cases  of  larceny  (62  Wis.,  57,  58,  but  see  p.  61,  21  N.  W.,  232); 
State  V.  Record,  151  X.  C,  695,  697,  65  S.  E.,  1010,  25  L.  R.  A.  (N".  S.), 


24  THEFTS    FROM    RAILROADS. 

Ml.  19  Ann.  Cas.,  527,  and  2  IVU's  Revisal  of  1908  (N.  C).  sec.  3507: 
and  Beg.  v.  Langmead  (ISM)  10  L.  T.  (N.  S.),  350,  351,  and  101 
Stat.  (24  and  25  Vict.  1861).  361,  sees.  91,  92;  and  also  2  Archbold's 
Crim.  Pr.  &  PI.,  1422.  The  statute  last  referred  to  (and  which  ap- 
])arently  governed  Langnicad's  ease)  provided  that  a  person  re- 
ceiving stolen  property.  "  knowing  the  same  to  h:i\e  been  feloniously 
stolen,"  should  be  guilty  of  a  felony  and  might  be  "  indicted  and 
convicted  either  as  an  accessory  after  the  fact  or  for  a  subst!inti\e 
felony,"  etc.,  and  also  provided  that  an  indictment  might  contain  a 
charge  of  "  feloniously  stealing  any  property."  and  also  one  or  more 
counts  for  "  feloniously  reeeiving  the  same  or  any  part  or  parts 
thereof,  knov^ing  the  same  to  have  been  stolen,"  etc.;  Langmead  was 
indicated  :iiid  tried  on  two  counts,  one  for  stealing  and  the  other  for 
receiving,  and  was  found  guilty  of  feloniously  I'eceiving:  Pollock, 
C.  B.,  said  (p.  351)  : 

The  (listiiiotioii  betwoen  tlie  presumption  as  to  felonious  receiving  and  sfeal- 
insi-  is  not  a  matter  of  law.  No  doubt,  upon  the  evidence,  no  other  person  than 
the  prisoner  appears  distinctly  to  enter  into  the  transaction,  and  all  that  ap- 
pears is  that  the  prisoner  was  found  very  recently  in  possession  of  the  stolen 
sheep.  Thai  prima  facie  is  evidence  of  stealing  rather  than  of  receiving,  but 
in  no  case  can  it  be  said  to  be  exclusively  such,  luiless  the  party  is  found 
so  recently  in  possession  of  stolen  jti-operty.  and  imder  such  circumtances  as 
to  exclude  the  probability  of  receiving;  as  where  a  party  is  stopped  c(»ming 
out  of  a  room  with  a  gold  watch  which  has  been  taken  from  the  room;  but 
if  he  has  left  the  room  so  long  as  to  render  if  probable  thai  he  may  have 
received  it  from  some  one  else,  then  it  may  be  evidence  either  of  stealing  or 
of  feloniously  receiving. 

These  decisions  and  the  statutes  affecting  tliem  are  enough  to  illus- 
trate the  distinction  already  mentioned  between  cases  of  that  char- 
acter and  the  instant  case.  If  those  decisions  can  iiot  be  so  distin- 
guished we  are  unable  to  follow  them,  but  must  i-ather  adopt  the 
I'ule  of  the  cases  hereafter  cited.  We  can  not  think  that  the  last- 
cjiioted  portion  of  the  charge  here  is  sustainable  under  either  count 
2  or  count  3  of  the  present  indictment.  The  charge  is  broad  and 
unqualified;  it  states  as  matter  of  law  "that  the  possession  of  stolen 
property  imputes  knowledge  in  the  possessor  that  it  was  and  is* 
stolen";  and  the  defendant  is  at  once  put  upon  his  proofs  to  free 
himself  of  that  presumption.  It  might  be  that  the  circumstances 
shown  to  have  attended  the  possession  of  property  involved  in  a  given 
case,  not  to  say  the  case  in  hand,  would,  if  unexplained  by  defendant, 
naturally  lead  the  jury  to  believe  that  he  received  the  property  with 
knowledge  that  it  had  been  stolen ;  but  to  impute  such  knowledge  as 
matter  of  law  is  a  different  proposition.  The  effect  of  this,  as  it 
seems  to  us,  was  to  impose  the  burden  uj)on  defendant  to  prove  his 
innocence  in  case  the  jury  should  find  the  goods  had  in  fact  been 
stolen.     Defendant's  possession,  say,  of  the  tin,  was  practically  ad- 


THEFTS  FROM    RAILROADS.  25 

]iiit(ed;  and.  if  it  was  once  found  that  this  tin  was  in  fact  stolen, 
(he  effect  of  the  charge  was  to  treat  sucli  admission,  coupled  with 
such  finding,  as  siifliciont  to  impute  "  knowledge  in  the  possessor  that 
it  was  and  is  stolen  "  property;  and  this  was  calculated  to  prejudice 
the  rights  of  the  accused.  In  Durant  v.  People^  13  Mich.,  351,  Durant 
was  charged  with  receiving  stolen  goods,  "  knowing  the  same  to  have 
been  feloniously  stolen,"  etc. ;  and,  upon  a  ruling  of  the  court  below 
excluding  testimony  tending  to  show  possession  but  without  guilty 
knowledge,  Christianoy,  J.,  speaking  for  a  unanimous  court,  said 
(13  Mich.,  352): 

The  (leffiiilant  was  not  charged  witli  hiiTciiy  of  the  goods,  and  her  posses- 
sion could  not  bo  used  as  evidence  tending  to  show  that  she  had  stolen  them. 
Her  iK>ssessIon  must  be  regarded  as  innocent,  unless  shown  to  have  been  re- 
ceived with  knowledge  that  they  were  stolen,  or  under  circuiustanccs  which 
would  satisfy  the  jury  that  she  believed  them  to  be  stolen.  Possession  itself, 
\vithout  evidence  tending  to  show  su<-h  guilty  knowledge,  could  have  no  tend- 
ency to  establish  her  guilt.  She  did  not,  in  fact,  undertake  to  deny  the  posses- 
sion, but  admitting  it.  claimed  she  had  come  to  the  i»ossession  innocently, 
without  notice  that  the  goods  were  stolen.  la  the  aspect  tlie  case  had  assumed 
when  this  ijuestion  was  i>roposed  to  the  witness,  guilty  knowledge  w.ms  prac 
tically  the  only  question  in  dispute.  But  independent  of  the  particidar  aspect 
the  ctise  hud  assumed  upon  the  evidence,  we  think,  in  all  proseeutions  for  this 
offense,  it  must  upon  prjni-iple  be  competent  alike  both  for  the  prosecution  and 
the  defen.se  to  show  what  were  the  jietual  circunistam.'es.  the  arrangement  or 
understanding  under  which  the  goods  were  received  by  the  defendant,  whether 
the  effect  shall  be  to  establish  guilt  or  innocence.  This  is  the  res  gest.'e,  the 
very  essence  of  the  inquiry. 

See  State  v.  Richmond,  IbO  Mo.,  71.  82,  85,  84  S.  W..  880;  StaU 
V.  Weinberg,  245  Mo.,  564.  571,  150  S.  W.,  1069;  People  v.  Weisen 
herger,  73  App.  Div.,  428,  429,  77  N.  Y.  Supp.,  71 ;  People  v.  Wilson, 
151  N".  Y.,  403.  406,  45  N.  E.,  862;  State  v.  Freedman  (Del.  Ct.  of 
Gen.  Sess.),  3  Pennewill,  403,  405,  53  Atl.,  356;  State  v.  Janks,  26 
Idaho,  567,  577,  578,  144  Pac,  779;  Casth-hen'y  v.  State,  35  Tex. 
Cr.  K.,  382,  383,  33  S.  W.,  875,  60  Am.  St.  Rep..  53:  Territory  v. 
Olaypool  di  Lueras,  11  N.  M.,  568,  577,  71  Pac,  463;  Slater  v.  United 
State.s,  1  Old.  Cr.,  275,  98  Pac,  110,  113:  Cooper  v.  State,  29  Tex. 
App.,  8,  19,  13  S.  W.,  1011,  25  Am.  St.  Rep..  712;  2  Wharton's  Crim. 
Ev.  (10th  Ed.),  sec  760. 

We  conclude  that  the  errors  pointed  out  in  the  charge  were  preju- 
dicial; and  an  order  will  accordingly  be  entered  reversing  the  judg- 
ment and  remanding  the  case  for  new  (rial. 

FORMS  OF  INDICTMENT. 

In  Heard  v.  United  States,  and  Dunn  v.  Same,  228  Fed..  503  (8 
C.  C.  A.),  a  case  was  presented  for  review  in  which  Hoard  was  con- 
victed of  stealing  from  a  railroad  car  certain  packages  of  money, 
being  irtterstate  shipments  by  express  (act  Feb.  13,  1913,  chap.  50, 


26  THEFTS   FROM    RAILROADS. 

37  Stat..  (>70),  and  Dunn  of  aiding  and  abetting  him.  and  both  of 
A  coNsnuACY  with  the  express  messenger  to  commit  the  thefts  (act 
Mar.  4,  1909.  chap.  321,  Penal  Code,  sec.  37,  35  Stat.,  1096).  The 
conviction  in  these  cases  was  reversed  upon  questions  of  law  not 
aflecting  the  interpretation  or  application  of  the  statutes  referred  to. 
In  the  Transcript  of  Record  of  the  Dunn  and  Heard  cases  just 
lef erred  to,  the  forms  of  indictment  used  are  as  follows : 

In  the  District  Court  of  tlie  United  States,  within  and  for  the  district  and 
division  aforesaid,  at  the  term  thereof,  A.  D. 

The  grand  jurors  of  tlie  United  States,  impaneled,  sworn  and  cliarged  at  tlie 
term  aforesaid,  of  the  court  aforesaid,  on  their  oath  present,  that  lieretofore, 

to  wit :  on  the  day  of  ,  A.  D.  ,  one ,  late  of  said 

district  and  division,  on  the  line  of  the ,  a  common  carrier,  between  the 

cities  of  ,  in  the  county  of ,  and  ,  in  tlie  county  of , 

in  the  district  and  division  aforesaid,  and  within  the  jurisdiction  of  tills  court, 
did  then  and  there  knowingly,  willfully,  unlawfully,  and  feloniously  take,  steal, 

and  carry  away  from  a  certain  car,  said  car  being  numbered  , 

and  being  then  and  there  a  part  of  a  train  of  cars  engaged  in  interstate  com- 
merce, three  certain  sealed  envelopes  and  packages,  in  the  custody  and  posses- 
sion of  the  United   States  Express  Company,   and  described  as  follows:  one 

envelope  and  pi»ckage  consigned  by  the  ticket  agent  of  the  said Company, 

at ,  in  the  district  and  division  aforesaid,  and  addressed  to  the  INIerchants 

Laclede  National  Bank  of  St.  Louis,  in  the  State  of  ,  said  envelope  and 

package  then  and  there  containing  money  in  the  sum  of  five  hundred  and  forty- 
eight  dollars  and  fifty  cents    ($548.50),   lawful  money  of  the  United  States, 

money  §nd  property  of  the  Company,  a  more  particular  description  of 

whicli  said  money  is  to  these  grand  jurors  unknown ;  also  one  package  and 

envelope  consigned  by  the  freight  agent  of  the  said  ('onipauy,  at  said 

,  addressed  to  the  Bank  of  ,  in  the  State  of  ,  said 

envelope  and  package  then  and  there  containing  money  in  the  sum  of  three 
hundred  and  twenty-four  dollars    ($324)    lawful  money  of  the  United   States, 

money   and  property  of  the  Company,  *   more  particular   description 

of  which  said  money  is  to  these  grand  jurors  unknown ;  also  one  package  and 

envelope,  consigned  by  the  ,  of  ,  at  ,  in  the  district  and 

flivision  aforesaid,  addressed  to  ,  of  ,  at  ,  in  the  State  of 

■ ,  said  envelope  and  package  then  and   there  containing  money   in  the 

sum  of  thrc^  hundred  and  twelve  dollars  and  nineteen  cents   (.$312.19),  lawful 

money  of  the  United  States,  money  and  property  of  the  Company,  a 

more  particular  description  of  which  said  money  is  to  these  grand  jurors 
unknown ;  said  packages  and  envelopes  above  described,  and  each  of  them,  then 
and  there  being  and  constituting  interstate  shipments  of  express,  as  above 
described ;  and  so  the  said  defendant  did  then  and  there  take,  steal,  and  carry 
away  from  and  out  of  the  combination  mail  and  express  car  aforesaid,  the 
envelopes  and  packages  constituting  the  interstate  shipments  of  express  as 
aforesaid,  money  and  property  of  the  said  railway  and  express  company  afore- 
said, with  intent  then  and  there  on  the  part  of  him  the,  the  said  ,  to 

wnvert  the  same  to  his  own  use  and  benefit ;  and  the  gi-and  jurors  aforesaid, 
on  their  oath  aforesaid,  do  further  present,  that  heretofore,  to  wit,  on  the  first 

day  of  ,  A.  D.  ,  one  at  ,  in  the  district   and  division 

aforesaid,  and  within  the  jurisdiction  of  this  court,  before  the  felony  and  crime 
aforesaid,  was  committed,  in  the  manner  and  form  as  aforesaid,  did"  then  and 


THEFTS   FROM    RAILROADS.  27 

there  knowingly,  wilU'iilly,  unlawfully  and   feloniously  counsel,  aiil.  alx-t,  and 

procure,  the  said  ,  to  do  and  commit  the  said  felony  and  ciinie  in  manner 

and  form  as  aforesaid,  and.  the  grand  jurors  aforesaid,  on  their  oath  aforesaid, 

do  further  present,  that ,  at ,  in  the  district  and  division  aforesaid, 

and  witliin  the  jurisrliction  of  this  court,  before  the  said  felony  and  crime  was 

connnitted  in  the  manner  and  form  as  aforesaid,  to  wit:  on  and  after  the 

day  of  ,  A.  D.  — ,  at  said  ,  In  the  district  and  division  afore- 
said, then  and  there  well  knowing  the  said  ,  to  have  done  and  committed 

the  felony  and  crime  in  the  manner  and  form  as  aforesaid,  then  and  there  did 

feloniously  receive,  harbor,  and  maintain  him  the  said ,  and  did  then  and 

there  knowingly,  willfully,  unlawfully,  and  feloniously  conceal  the  commission 
of  the  said  felony  committed  in  the  manner  and  form  as  aforesaid,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided  and  against  the 
peace  and  dignity  of  the  United  States. 

SECOND    COUNT. 

[Section  37  of  the  Revised  Criminal  Code  of  the  United  States.] 

And  the  grand  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present 

that  heretofore,  to  wit,  on  the day  of  ,  A.  D.  ,  one  and 

one  ,  in  the  first  count  of  this  indictment  mentioned,  at  ,  in  the 

district  and  division  in  the  first  count  hereof  mentioned,  and  within  the  juris- 
diction of  this  court,  did  then  and  there  commit  the  crime  of  conspiracy,  and 

did  amongst  themselves,  and  with  one  .  combine,  conspire,  confederate, 

and  agree  together  to  take,  steal,  and  carry  away  from  and  out  of  the  com- 
bination mail  and  express  car  in  the  first  count  of  this  indictment  mentioned 
and  described,  the  envelopes  and  packages  mentioned  and  described  in  the  first 

count  hereof;  and  the  said  and  the  said  afterwards,  to  wit.  on 

the  day  of ,  A.  D.  ,  within  the  district  and  division  aforesaid, 

and  within  the  jurisdiction  of  this  court,  and.  at  and  between  the  points  in 
the  first  count  hereof  mentioned,  in  pursuance  of  and  in  accordance  with  the 
said  unlawful  conspiracy,  combination,  confederacy,  and  agreement  amongst 
them.selves.  had  as  aforesaid,  did  then  and  there  knowingly,  willfully,  unlaw- 
fully, and  feloniously  steal,  take,  and  cnrry  away  from  and  out  of  the  combi- 
nation mail  and  express  car  in  the  first  count  of  this  indictment  mentioned  and 
described,  with  intent  then  and  there  to  convert  to  his  own  use  and  benefit  and 
to  the  use  and  benefit  of  each  of  them  the  three  (3)  envelopes  and  packages  in 
the  first  count  hereof  mentioned  and  described,  each  of  the  said  envelopes  and 
packages  then  and  there  being  interstate  shipments  of  express,  as  in  said  first 
count  mentioned  and  described,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided  and  against  the  peace  and  dignity  of  the  United  States. 


In  the  case  of  Greeiiburg  ct  al.  v.  United  States,  now 
pending  on  -writ  of  error  in  the  United  States  Circuit 
Court  of  Appeals  for  the  Seventh  Circuit.  No.  2563,  the 
following  were  forms  followed  in  the  indictment : 

The    grand    jurors    of    the    United    States,    impaneled,    sworn       [Breaking 
charged  at  the  term  aforesaid,  of  the  court  aforesaid,  on  their 

oaths  present  that and and  each  of  them,  on,  to  wit : 

the day  of  ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and  ,  in  the  county  of  ,  in  the  State 


28  THEFTS   FROM    KAILKOADS. 

of  ,  ill  the  District  aforesaiil,  and  within  the  juris- 
diction of  said  court,  did  unhiwfully  and  feloniously  break  the 
seal  of  a  certain  railroad  car  then  and  there  bearing  the  name 
and  number  to  wit: which  said  car  then  and  thei-e  con- 
tained an  interstate  shipment  of  freight,  to  wit:  a  large  quan- 
tity of then  and  there  consigned  and  in  transit  from . 

in  the  State  of to ,  and in  the  State  of 

and  and  ,  in  the  State  of ,  and  in  the 

State  of  ,  which  said  railroad  car  was  then  and  l^.f■r^'  in 

the  possession  of  the Company,  a  corporation  and  coi.-unon 

carrier  then   and  there  being,   with  the  unlawful   and   felo!  4«>us 

intent  tlu-n  and  there  in  thein  the  said  and  and 

each  of  them,  to  tlien  and  there  commit  larceny  in  said  car,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  iinnided. 
and  against  the  peace  and  dignity  of  the  United  States. 
[Unlawfully       ^,^1  fi^^  grand  Jurors  aforesaid,  upon  their  oaths  aforesaid,  do 
eBt.Ting    car.     j^^^^^.^j^^^.  pj-^.^p^j   ,],.,f -u^j   ^   .,„d   each   of   them,   on, 

to  wit:   the  day  of  ,  in  the  year  of  our  Lord  one 

.thousand   nine  hundred   and  ,   in   tlu?  county   of  ,  in 

the  State  of  ,  in  the I>;sti-i(.M    aforesaid  and  within 

tlie  Jurisdicition  of  said  court,  did  unlawfully  and  feloniously 
enter  a  certain  car  then  and  there  bearing  the  name  and  lumiher. 
to  wit:  ,  which  said  car  then  and  there  contained  an  inter- 
state shipment  of  freight,   to   wit:    a    large   quantity   of  , 

then  and  there  consigned  and  in  transit  from  ,  in  the  State 

of to ,  and ,  in  the  State  of — ,  and 

and   .    in   the   State   of   ,    and   — ■   in    the    State 

of ,  and  which  said  railroad  car  was  then  and  there  in  the 

possession  of  the Company,  a  corporation  and  common  car- 
rier then  and  there  being,  with  the  unlawful  and  felonious  intent 

then  and  there  in  them  the  said  .  and  ,  and  each  of 

them,  to  then  anil  there  commit  hvrceny  in  said  car,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  tlie  riiitcd  States. 

[Larceny       _^,,^|  |.j^g  grand  jurors  aforesaid,  upo'i  their  oaths  aforesaiil.  do 
from  car.  J  ^ 

further  present  that  and  ,   and  each  of  them  on 

to  wit:  the  day  of  ,  in  the  year  of  our  Lord  one 

thousand  nine  hundred  and .  in  the  County  of .  in  (he 

State  of  ,  in  the district  aforesaid,  and  within  the 

jurisdiction  of  said  court,  did  unlawfully  and  feloniously  take, 
steal,  and  carry  away  from  a  certain  railroad  car  then  and  there 

bearing  the  name  and  number,  to  wit:  a  large  quantity 

of  to  wit :  oases  of  ,  then  and  there  of  the 

value  of,  to  wit:  dollars  per  Ci>.se,  and  then  and  there  con- 
tained in  said  railroad  car,  with  the  unlawful  and  felonious  in- 
tent then  and  there  in  them  the  said and ,  and  each 

of   them,   to   convert   to   their  own   use  the   said   .   %\hicli 

Sfii(3  then   and  there  constituted  a  i)art   of  an  interstate 

shipment   of   freight    then    and    there    consigned    and    in    transit 

from  ,  in  the  State  of •  to  and  in  the 

State  of  ,  and and  ,  in  the  State  of  , 

and in  the  State  of .  which  said  raili-oad  car  and  the 

said  were  then  and  there  in  the  possession  of  the  -^ 

Company,   a   corporation   and   common   carrier,   then   and   there 


THEFTS   FROM    KAH, ROADS.  29 

ht'iriK,  <'<>ritrary  to  the  form  of  the  statufo  in  siidi  case  made  and 
provided,  and  against  the  i>eace  and  dignity  of  the  United  States. 

And  tlie  grand  jurors  aforesaid,  upon  their  oaths  aforesaid,  do       [Unlawfully 

further  present  that  .  and  .  and  each  of  them,  on.  slon°of'**prop- 

to  wit:  the day  of  ,  in  the  year  of  our  Lord  one  erty^  ,^ar,Y*° 

lliousand  nine  liundrod  and  ,  in  I  he  County  of  ,  in 

tlie  Statt»  of .  in     the  district  aforesaid  and  witliin 

liie   jurisdiction    of   said    eourt,   did    unlawfully    and    feloniously 

have  in  iheir  rtossession  a  large  quantity  of ,  to  wit:  

cases  of  ,  then  and   tliere  of  the  value  of,  to  wit:  • 

dollars,  which  said  had  lately  theretofon;  been  unlawfully 

and  feloniously  stolen,  taken,  and  carried  away  from  a  certain 
railroad  car  in  the  county  of ,  in  the  Stale  of .  afore- 
said, and  which  said  railroad  car  then  and  there  bore  the  name 

:ind  number  to  wit:  which  said then  and  there  con- 

viituted   a    part    of  an   interst'ate  shipment   of  freight   then   and 

itiere  consigned  and  in  transit  from ,  in  the  State  of -, 

m    and    ,    in    the    State    of    ,    and    — 

.1)1(1   ,    in    the    State   of ,    and   ,    in    the    State 

ul  ,  and  which  said and  railroad  car.  at  the  time  the 

said  were  stolen  as  aforesaid,  were  then  and  there  in  the 

possession   of   the  Company,   a   corporation   and  common 

i;»rrier  then  ;mu1  there  being,  the.\    the  said  ,  and  . 

ami  each  of  tliem.  then  and  there  at  the  time  of  so  having  the 

said  in  their  pos.se.ssion  as  aforesaid,  then  and  there  well 

knowing  the  .>.aid  ro  have  been  stolen  as  aforesaid,  con- 

riary  to  the  form  of  the  statute  in  such  ease  made  and  provided, 
and  against  the  peact"  and  dignity  of  the  Cnited  States. 

In  (he  case  of  U nited  State>>  v.  Ueyne,  United  States  Di.strict  Court. 
Northern  District  of  Illinois.  Eastern  Division,  there  was  a  convic- 
tion of  the  defendant  tinder  section  60  of  the  Criniinal  C'ikIc.  This 
section  is  as  follows: 

Whoever  shall  willfully  or  maliciously  injure  or  destroy  any  of  ilie  works. 
property,  or  material  of  any  telegraph,  telephone,  or  cable  line,  or  system,  oiier- 
jitetl  or  controlled  by  the  United  States,  whether  constructed,  or  in  process  of 
construction,  or  shall  willfully  or  maliciously  interfere  in  any  way  with  the 
working  or  use  of  any  such  line,  or  system,  or  shall  willfully  or  maliciously 
obstruct,  hinder,  or  delay  the  transunssion  of  any  communication  over  any  such 
line,  or  system,  shall  be  fined  not  more  than  ."Sl.OOO,  or  imprisoned  not  more  than 
three  years,  or  both. 

The  form  of  indictment  is  as  follows: 

In  the  District  Court  of  the  United  States  of  America  for  the  Northern  District 
of  Illinois,  Eastern  Division.     Of  the  March  Term,  in  the  year  191S. 

NtJBTHKRN  District  of  Ilonois. 

Eastern  Divinion,  set: 
The  grand  jurors  for  the  ITnited  States  of  America,  impaneled  and  sworn  in 
the  District  Court  of  the  United  States,  for  the  Eastern  Division  of  the  Northern 
District  of  Illinois,  and  inquiring  for  that  division  and  district,  upon  their  oath 
present  that  on,  to  wit,  the  twenty-sixth  day  of  December,  in  the  year  nineteen 
hundred  and  seventeen,  the  President  of  the  United  States  of  America,  through 
the  Secretary  of  War  for  said  United  States  of  America,  did  issue  and  cause 
to  be  issued  a  certain  proclamation,  under  and  by  virtue  of  the  authority  so 


30  THEFTS   FROM    RAILROADS. 

to  do.  ,m-ant(>il  in  :iiul  by  the  act  of  Congress  approved  on  the  t\\"eiity-ninth  day 
of  August,  in  the  year  nineteen  hundred  and  sixteen,  entitled  "An  act  making 
appropriations  for  the  support  of  the  Army  for  the  fiscal  year  ending  June 
thirtieth,  nineteen  hundred  and  seventeen,  and  for  other  purposes,"  whereby 
the  President  of  the  United  States  of  America,  through  the  Secretary  of  War 
for  the  said  United  States  of  America,  did  take  possession  and  assume  control, 
at  twelve  o'clock  noon  on  the  twenty-eighth  day  of  December,  in  the  year  nine- 
teen hundred  and  seventeen,  of  each  and  every  system  of  transportation  and 
the  appurtenances  thereof  located  wholly  or  in  part  within  the  boundaries  of 
the  continental  United  States,  and  consisting  of  railroads,  and  owned  or  con- 
trolled systems  of  coastwise  and  inland  transportation  engaged  in  general  trans- 
portation, whether  operated  by  steam  or  by  electric  power,  including  all 
terminals,  terminal  companies  and  terminal  associations,  sleeping  and  parlor 
cars,  private  cars  and  private  car  lines,  elevators,  warehouses,  telegraph  and 
telephone  lines,  and  all  other  equipment  and  appurtenances  commonly  used 
upon  or  operated  as  a  part  of  such  rail  or  combijied  rail  and  water  systems  of 
transportation. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present 
that  the  Illinois  Centra!  Railroad  Company,  a  corporation  common  carrier 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the  State  of  Illinois, 
was,  on,  to  wit,  the  twenty-eighth  day  of  December,  in  the  year  nineteen  hun- 
dred and  seventeen,  the  owner  of  a  system  of  transportation  and  the  appurte- 
nances thereof,  including  telegraph  and  telephone  lines,  located  wholly  within 
the  boundaries  of  Ihe  continental  United  States,  and  that  on,  to  wit,  the  said 
twenty-eighth  day  of  December,  in  the  year  nineteen  hundred  and  seventeen, 
the  possession  and  control  of  the  said  system  of  transportation  and  the  appurte- 
nances thereof,  including  telegraph  and  telephone  lines,  were  transferred  from 
the  said  Illinois  Central  Kailroad  Company,  a  corporation  common  carrier  as 
aforesaid,  to  the  President  of  the  United  States  of  America  through  the  Secre- 
tary of  War  for  said  United  States  of  America. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present 
that  on,  to  wit,  the  second  day  of  February,  in  the  year  nineteen  hundred  and 
eighteen,  at  Chicago,  in  the  State  of  Illinois,  and  in  the  division  and  district 
aforesaid,  one  Herman  A.  Heyue  did  then  and  there  unlawfully,  willfully,  and 
maliciously  injure  certain  property,  to  wit.  a  large  number  of  telegraph  wires 
then  and  there  located  upon  the  premises  of  the  said  Illinois  Central  Kailroad 
Company  situated  in  and  about  Kedzie  Avenue  and  the  right  of  way  of  the  said 
Illinois  Central  Railroad  Company,  in  the  said  city  of  Chicago,  by  cutting  and 
severing  the  said  telegraph  wires,  which  said  telegraph  wires  then  and  there 
constituted  part  of  a  system  of  telegraph  then  and  there  operated  and  controlled 
by  the  United  States  of  America  as  aforesaid;  against  the  peace  and  dignity  of 
the  said  United  States,  and  contrary  to  the  form  of  the  statute  of  the  same  in 
such  case  made  and  provided. 

2.  And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  jire- 
sent  that  on,  to  wit,  the  twenty-sixth  day  of  December,  in  the  year  nineteen 
hundred  and  seventeen,  the  President  of  the  United  States  of  America,  through 
the  Secretary  of  War  for  said  United  States  of  America,  did  issue  and  cause 
to  be  issued  a  certain  proclamation,  the  nature  and  character  of  which  said 
proclamation  as  set  forth  in  said  first  count.  Is  hereby  incorporated  and  made 
a  part  of  this  count. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present 
that  the  said  Illinois  Central  Railroad  Company,  a  corporation  common  car- 
rier organized  and  existing  under  and  by  virtue  of  the  laws  of  the  State  of 
Illinois,  was,  on,  to  wit,  the  twenty-eighth  day  of  December,  in  the  year  nine- 
teen hundred  and  seventeen,  the  owner  of  a  system  of  transportation  and  the 


THEFTS   FROM    RAILROADS.  31 

appurtenancps  thereof,  incliKlliiK  telegraph  and  telerilione  line.s,  located  wholly 
within  the  boundaries  of  the  continental  United  States,  and  that  on,  to  wit, 
the  said  twenty-eighth  day  of  December,  in  the  year  nineteen  hundred  and 
seventeen,  the  possession  and  control  of  the  said  system  of  transportation 
and  tlie  appurtenances  thereof,  includinR  telegraph  and  telephone  lines,  were 
transferred  from  the  said  Illinois  Central  Railroad  Company,  a  corporation 
common  carrier  as  aforesaid,  to  the  President  of  the  United  States  of  America 
through  the  Secretary  of  War  for  said  United  States  of  America. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present 
that  on,  to  wit,  the  second  day  of  Felruary,  in  the  year  nineteen  hundre<l  and 
eighteen,  at  Chicago,  in  the  State  of  Illinois,  and  in  the  division  and  district 
aforesaid,  one  Herman  A.  Ileyne  did  then  and  there  unlawfully,  willfully,  and 
maliciously  interfere  with  the  working  and  use  of  certain  telegraph  lines,  to  wit, 
a  large  number  of  telegraph  wires  then  and  there  located  upon  the  premises  of 
the  said  Illinois  Central  Railroad  Company  situated  in  and  about  Kedzie  Avenue 
and  the  right  of  way  of  the  said  Illinois  Central  Railroad  Company,  in  the 
said  city  of  Chicago,  by  cutting  and  severing  the  said  telegraph  lines,  which 
said  telegi-aph  lines  then  and  there  constituted  part  of  a  system  of  telegraph 
then  and  there  operated  and  controlled  by  the  United  States  of  America  as 
aforesaid ;  against  the  i)eace  and  dignity  of  the  said  United  States,  and 
contrary  to  the  form  of  the  statute  of  the  same  in  such  case  made  and  provided. 

3.  And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent that  on.  to  wit,  the  twenty-sixth  day  of  December,  in  the  year  nineteen 
hundred  and  seventeen,  the  President  of  the  United  States  of  America,  through 
the  Secretary  of  War  for  said  United  States  of  America,  did  Lssue  and  cause  to 
be  issued  a  certain  proclamation,  the  nature  and  character  of  which  said  procla- 
mation as  set  forth  in  said  first  count  is  hereby  incorporated  and  made  a  part 
of  this  count. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present 
that  the  .said  Illinois  Central  Railroad  Company,  a  corporation  common  carrier 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the  State  of  Illinois, 
was.  on,  to  wit,  the  twenty-eighth  day  of  December,  in  the  year  nineteen  hundred 
and  seventeen,  the  owner  of  a  system  of  transportation  and  the  appurtenances 
thereof,  including  telegraph  and  telephone  lines,  located  wholly  within  the 
boundaries  of  the  continental  United  States,  and  that  on,  to  wit,  the  said  twenty- 
eighth  day  of  December,  in  the  year  nineteen  hundred  and  seventeen,  the  pos- 
session and  control  of  the  said  system  of  transportation  and  the  appurtenances 
thereof,  including  telegraph  and  telephone  lines,  were  transferred  from  the  said 
Illinois  Central  Railroad  Company,  a  corporation  common  carrier  as  aforesaid, 
to  the  President  of  the  United  States  of  America  through  the  Secretary  of  War 
for  saiil  United  States  of  America. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present 
that  on,  to  wit,  the  second  day  of  February,  in  the  year  nineteen  hundred  and 
eighteen,  at  Chicago  in  the  State  of  Illinois,  and  in  the  division  and  district 
aforesaid,  one  Herman  A.  Heyne  did  then  and  there  unlawfully,  willfully  and 
maliciously  obstruct,  hinder  and  delay  the  transmission  of  communications  over 
certain  telegraph  lines  located  upon  the  premises  of  the  said  Illinois  Central 
Railroad  Company  situated  in  and  about  Kedzie  Avenue  and  the  right  of  way 
of  the  said  Illinois  Central  Railroad  Company,  in  the  said  city  of  Chicago,  by 
cutting  and  severing  said  telegraph  lines,  which  said  telegi-aph  lines  then  and 
there  constituted  part  of  a  system  of  telegraph  then  and  there  operated  and 
controlled  by  the  Unitetl  States  of  America  as  aforesaid:  against  the  peace  and 
dignity  of  the  said  United  States,  and  contrary  to  the  form  of  the  statute  of  the 
same  In  such  case  made  and  provided. 

United  States  Attorney. 

UC  SOUTHER^  REGIONAL  LIBRARY  FACILITY 


AA       r\r\r\  -700  o  .4  ^ 


DIRECTOR  GENERAL  OF  RAILROADS. 

Interstate  Commerce  Building, 

Washington,,  March  26,  1918. 

Circular  No.  14. 

To  all  railroad  officiah  and  employees: 

A  Section  for  the  Protection  of  Railroad  Property  and  property 
of  shippers  in  transit  has  been  established  in  the  Division  of  Law 
by  the  Director  General  to  enforce  rigorously  the  Federal  Law  against 
theft  from  cars,  stations,  sidings,  and  wharves,  and  to  take  all  neces- 
sary measures  in  cooperation  with  carriers  to  prevent  loss  from  this 
cause,  which  in  past  years  has  been  enormous. 

Philip  J.  Doherty  is  lierebv  appointed  Manager  of  such  Section. 

Full  coo))oratioii  with  this  Section  is  required  from  all  officers 
and  employees  of  tlio  railroa<ls.  and  special  agents  or  secret  service 
men  employed  by  the  can'iers  are  especiallj'  required  to  cooperate 
with  this  Section,  both  in  preventing  and  investigating  theft,  mak- 
ing arrests,  or  prosecuting  otl'enders,  and  railroad  attonievs  and  all 
other  officials  are  required  to  give  all  possible  aid. 

Anyone  having  knowledge  of  any  such  offense  should  ri'i)<)rt  the 
same  to  the  nearest  railroad  official  or  to  tliis  Section,  in  order  that 
indictment  of  the  guilty  parties  may  be  had  under  the  Federal  Law, 
which  carries  a  maximum  penalty  of  ten  years'  imprisonment. 

Communications  should  be  addressed  to  I'hilip  J.  Doherty,  Man- 
ager, Section  for  Protection  of  Railroad  Property,  United  States 
Railroad  Administration.  AVashington,  D.  C. 

Officers  and  emph)yees  must  imderstand  that  all  property  being 
transported  by  the  railroads  is  in  the  custody  of  tlie  United  States 
and  they  owe  an  especial  duty  to  guard  and  protect  the  same  and 
to  report  prompth'  any  person  who  tampers  therewith;  and  the 
United  States  looks  to  the  officers  and  employees  to  do  theii-  duty  in 
lliis  l)ehalf. 

AV.  (t.  McAdoo; 

Director  General  of  Railroads. 
O 


